Several recent decisions by the special judicial court on corruption related cases in favor of notorious corrupt political leaders reveal Nepal’s inefficient and frequently biased judicial system. Such decisions call for immediate reforms to reinvigorate the present legal system to deliver justice and create a corruption free, efficient and fair society, which will aid in Nepal’s economic development. A modern economy requires judicial system of such a nature. Every study undertaken by a reputable international research body of Nepal’s judiciary system has pointed out that Nepal’s judicial system, except the Supreme Court, is mired in corruption and is grossly inefficient and often unfair in delivering justice. These studies also have consistently revealed that lawsuits and criminal cases in Nepal’s courts have piled up for years without any timely decisions, raising the cost to the society. The business community in Nepal frequently complains about the courts inability to ensure the enforcement of contracts.
It is not uncommon in Nepal to find the judicial system penalizing good behavior and rewarding bad ones. There are judges who are more skilled in covering up and indulging corruption rather than preventing it. A recent decision by the special judicial court related to the former Nepali Congress central committee member and Minister Khum Bahadur Khadka exposes this ugly situation and supports the public outcry that many judges are unaccountable and out of touch with the citizens they are supposed to serve. It is very unlikely that the judges could not have found any evidence of wrong doing in this case. Instead, it is very likely that the decision in Mr. Khadka’s case was subject to the influence of the accused’ money and political muscle. This action only provides the wrong kind of incentives and weakens both our society and the economy. No doubt, there are some people in our justice system with impeccable character and integrity, but they seem helpless to stem the rot in the system.
In the highly respected Transparency International’s “corruption perception index”, Nepal’s ranking is quite low, 123 out of 159 countries. Any corruption in the judicial system will have negative ramifications over all judicial oversight and the executive and legislative systems, undermining the checks and balance in the system and generating more corruption. In addition, there is a strong link between the efficiency of the judicial system and economic development. Many cross-country studies on the links between judicial accountability and economic growth have shown a strong link between a fair judiciary system and per capita income growth through various channels, particularly through reduction of corruption that reduces investment, output, and employment.
Why do we have such an inefficient judicial system despite its long history of operation? The answer lies partly in its very structure and in the integrity of those who are in charge of the judicial system. The judges have a high degree of desired independence with little or no scrutiny. While judicial independence is clearly desired, the absence of any oversight mechanisms allows the miscreants to face no credible threat of punishment. In addition, Nepal’s legislative body itself has proven to be so corrupt that it is not in their interest to introduce or bring forward mechanisms to revamp the country’s flagging judicial system. During the early 1990s, after the popular People’s Movement, the judicial system was granted a very high degree of autonomy. Since then, besides exhibiting remarkable adaptability in country’s new judicial settings, it has also delivered some important historical constitutional decisions in the context of the nation’s uncertain political environment, guiding and enforcing newly established constitutional values. Despite these important achievements, it has done a poor job in controlling corruption in the system, particularly in the Appellate and the District courts.
The first step in fixing problems in our judiciary system would be for it to acknowledge that a major fundamental problem exists in the system. Our judicial system should set up a new independent council within their jurisdiction or revamp the existing one to monitor the probity of the courts and to investigate allegations of corruption and other misconduct by the judges. This council should be completely autonomous and equipped with sufficient resources- human, physical and technical. The public must be informed of the existence of such an independent judicial council. Further, the media and the civil society should play a more vigilant role in exposing miscreants in the judicial system. Timely publication of court decisions would definitely improve the transparency of the judicial system. The Nepal Bar Association also can play a crucial role in helping clean up our messy judicial system by pressuring judicial judges and legislators for a much-needed reform. Another strategy in the long run would be to create demand for the best and the brightest persons in judicial jobs by giving much needed incentives in the form of higher salaries and other necessary benefits. Our legislative branch also must ensure that the judiciary system’s employees have a good pay system, which allows employees an acceptable standard of living. The parliament should allocate a sufficient budget for our important judicial system. One of the most frequently cited solutions to mitigate corruption in the public sector is to pay employees well so that employees are not forced to pursue self-serving rather than public serving-ends.
The judicial system must begin to set its house in order to help build a fair society, enforcing law and order in the country, restoring integrity and competence in the legal system, and securing property rights, thereby, giving a big boost to the economic development of our nation. The future Constituent Assembly in Nepal will be operating at the most auspicious time to reconstruct our dysfunctional judicial system. The long-term benefits to our society from reforming our judicial system will certainly exceed the costs incurred in restructuring it at the beginning. As Brobbet’s Divine Mandate notes, “without honor, there is no justice, without justice, there is no future”.
The article was published in the Editorial section of the Kathmandu Post.