Parliamentary Hearings and the Independence of the Judiciary
Question: Does the unusual dispute between the ruling party and the opposition during parliamentary hearings for the appointment of the Chief Justice not constitute a severe blow to the credibility of an independent judiciary?
Following recent political changes, parliamentary hearings have become a new dimension in Nepal’s constitutional and parliamentary practices. With over a decade of experience, questions frequently arise regarding hearings, particularly for judges. As the Constitutional Council prepares to recommend the next Chief Justice, this issue has resurfaced.
Concept and Origin
Examining the qualifications of public officials is a natural practice. In the United States, the Senate’s confirmation hearings for judicial and other appointments, as initiated under its constitution, set the precedent. In Nepal, this process is termed “parliamentary hearing.” In the U.S., the President directly nominates judges without an independent body’s recommendation. For instance, when President Donald Trump nominated Brett Kavanaugh, allegations of a 30-year-old assault by Christine Blasey Ford sparked controversy, yet the Senate confirmed Kavanaugh in October 2018.
Practice in Nepal
During the Panchayat era, the monarchy (and Ranas) held decisive power over the legislature, executive, and judiciary, making royal interference in the judiciary commonplace. The 1990 Constitution of Nepal recognized an independent judiciary as a fundamental feature for the first time, with judicial appointments made through independent constitutional bodies like the Constitutional Council and Judicial Council. However, it lacked provisions for parliamentary hearings.
Following the Maoist peace process, inspired by U.S. practice, consensus was reached to include parliamentary hearings for judicial appointments. This was incorporated into the Interim Constitution of 2063 BS (2007 CE) and continued in the Constitution of Nepal (2072 BS/2015 CE). Article 129(2) mandates that the Chief Justice is appointed by the President on the Constitutional Council’s recommendation, while other Supreme Court justices are appointed on the Judicial Council’s recommendation.
Conceptual Significance
Theoretically, parliamentary hearings ensure public participation in judicial appointments, strengthening the justice system and making it accountable to the public. They serve as a mechanism for checks and balances, enhancing transparency and accountability in executive appointments. Through elected representatives, the public learns about the individuals appointed as judges and can provide feedback, fostering public ownership of the judiciary. This strengthens the judiciary and promotes judicial good governance. A judge approved through parliamentary hearings gains enhanced confidence, reinforcing judicial accountability.
Issues in Context
Article 284(3) of the Constitution requires that heads or officials of constitutional bodies recommended by the Constitutional Council be vetted by the Parliamentary Hearing Committee. In the U.S., direct presidential nominations justify such hearings for checks and balances. In Nepal, the Constitutional Council, chaired by the Prime Minister and including the Chief Justice, Speaker of the House, Chairperson of the National Assembly, Leader of the Opposition, and Deputy Speaker, recommends the Chief Justice. The Parliamentary Hearing Committee, comprising 12 members from the House of Representatives and 3 from the National Assembly, approves the nomination.
Since the Constitutional Council, primarily composed of political figures, recommends the Chief Justice, and the Parliamentary Hearing Committee, also politically dominated, approves it, does this not imply the recommender is self-approving? Moreover, with provisions for impeachment if Supreme Court justices violate their code of conduct, does the hearing process create a compulsion for judges to remain loyal to political parties? Additionally, parliamentarians with questionable backgrounds may hold biases against judges who ruled against them, raising concerns about whether a judge facing such fear can uphold constitutional rights to criminal justice and fundamental rights.
Impact of Recent Practices
The recent practice of unnatural disputes between ruling and opposition parties during Chief Justice appointments under the guise of parliamentary hearings—is this not a severe blow to the independent judiciary’s credibility? Everyone must be responsible for their actions and accountable for their duties. Should the body determining accountability not also be accountable?
No universal standard exists to determine which system is ideal or most democratic. A system’s effectiveness depends partly on its design and partly on its implementation. Globally, apart from the U.S., Nepal is the only country adopting this practice. Including parliamentary hearings in Nepal’s constitution, crafted by elected representatives, is not inherently wrong, but its implementation must be convincing and effective.
If the judiciary’s dignity is compromised, public trust in it erodes, reducing judicial decisions to mere records in court archives. Therefore, members of the Parliamentary Hearing Committee must rise above partisan interests. The committee should seek reasons and grounds for recommendations, document factual complaints, and make unbiased decisions. A fair, competent, and impartial judiciary should be the goal of all parties, and no one should compromise on protecting its dignity.
Recommendations
Judicial appointments must be based on fair and transparent criteria, prioritizing qualifications, experience, and competence. Appointing judges based on merit is essential for judicial impartiality. Experts argue that the judiciary’s independence would be better protected if its members were selected from within the judiciary itself and allowed to determine their procedural rules through law. Appointments should be based on objective criteria like qualifications, competence, experience, integrity, and impartiality. The principle of judicial independence mandates that appointed judges perform their duties free from pressure or interference, with constitutional guarantees to ensure this.
