By Bhakti Nepal
Nepaldalitinfo International Network
nepal.bhakti@gmail.com

Nepal’s judiciary, despite being one of the three branches of the state, has managed to systematically exclude the marginalized communities, especially Dalit and indigenous communities, from the time immemorial. Judiciary has always remained an exclusive domain of so-called high caste people, especially Bahuns, Chhetris, Newars, and Rajputs as if they only inherit any job positions in the judicial offices. In its 60 year long modern judicial history in the country, there is almost absolute absence of Dalits and negligible participation of indigenous people in the judiciary. It feels as if Dalits are not admissible to this public sector of highest dignity.

In the new era of inclusiveness in Nepal, judiciary must be reformed, and some sort of reservation of quota system or affirmative action for a minimum period of ten years especially is necessary. This has been warranted by the provisions made in the Interim Constitution of Nepal. This is not only about fulfilling the obligation set by the constitution but also about espousing a sense of belongingness to the state among Dalits and indigenous ethnic communities. This will also be an opportunity for the state to show the rest of the world that Nepal no longer remains a nation that bars Dalits in all practical terms from being appointed to the positions of judges. Moreover, this opportunity is about strengthening the democratic republic by bringing all sovereign people together in nation building.

The author Ananta Raj Luitel in his recent article , “Quota system: Does this mean end of independence of judiciary?” that appeared in the LEGALE-EAGLE Perspectives column of The Himalayan Times (Kathmandu, November 16, 2008) asserts that there is a provision of reservation of quota for women, Dalits and Janajatis and the people of the backward region in the other government services. If such a provision exists, would it not be logical to extend it to judiciary? In fact such quota would be in line with Article 33 (d1) of the Interim Constitution of Nepal, which guarantees inclusiveness in spirit stating ‘to enable Dalit, indigenous ethnicity, women…to participation in all organs of the state structure on the basis of proportional inclusion’.

Luitel’s article ironically appeared to carry a biased belief that only the posts of judges are directly related with the life and liberty of the people. Any intellectual mind can think that life and liberty are much more complex than what Luitel believed to be. Not only the justice, there are manifold human spheres that are important for sustaining the life and liberty. However, we believe that the positions of judges are held by the persons, whom the people do venerate for preserving the rights of every citizen to be born, grow and live with dignity equal to that of other fellow citizens.

While the article’s author recognizes the positive side from the reservation system that gives space for the people of the sections concerned, he becomes maligning to say “… there is a high risk of hindrance to the quality of justice.” He fails to realize that having the reservation system is not about diminishing the quality of justice; rather it is about enhancing the quality of justice by way of broadening the knowledge base in the benches encompassing diverse people’s perspectives. More diverse the background of the justices, higher would be the quality of justice delivered with the wider vision and perspectives of the cases they handle.

It is wrongful to consider that appointing judges under rightful criteria fixed prior to hiring will anyway hinder the independence of judiciary. Any hiring of public office jobs must reflect the peoples’ aspirations for justice and fairness, and judiciary cannot be isolated from this process. The author Luitel on one hand rightly maintains in his article that merely meeting the criteria is not sufficient for holding the posts of judges; integrity and people’s perception should be considered. The crux of the matter is that the people’s perception will have been reflected fully only when the people from all segments of the society feel that they are well represented in the judiciary to have their full faith in them. If all the judges of the Supreme Court are from Bahun, Newar, Chhetri or Madheshi Rajput castes throughout the history and same pattern has been continuing in the new era of Nepal, there cannot be a reasonable ground for the people, especially the marginalized ones, to believe that the judiciary has come to them with a change for itself becoming independent of caste based discrimination. Unless the diversity of people is reflected in the faces of judges, today’s marginalized people cannot perceive it to be of their own.

Luitel wrote an extremely nonsense view that introducing a system to make room for some equalization through the societal inclusion by way of introducing a quota system of reservation for people who would otherwise be excluded from the judiciary sector might create hindrance to the quality in the justice system and may pose a threat to the independence of the judiciary. There is absolutely no basis to claim that the quality of court and independence of judiciary will be adversely affected if the positions of judges are filled from the people of marginalized communities, meeting the criteria set for minimum requirements of the positions. Has any one heard of a patient died because s/he was treated by a doctor trained in medical sciences from reservation quota? The current Chief Justice of India comes from a Dalit community. How can Luitel even dare imagine that Honourable Chief Justice K. G. Balakrishnan, who has given several rulings that have had far reaching positive effects on society, could cause any threat to quality or independence of the justice system of India? Luitel’s argument is not only biased and maligning, but also a dangerous one coming from feudalist- Brahminist view of those who fear as if they have to part away some of their apparently inherited and practically reserved judiciary positions to Dalits, whom they have been always treating inferior to animals for a long time.

The traditional practice of appointing judges only by promotions through the bureaucratic ladder of judiciary is perhaps a rudiment of feudalist setup that has been going on in the judiciary sector for a long time. In the new era, new judges must have to go through a rigorous open job interviews among all qualified lawyers within or outside the courts before they can sit on the benches. At the same time, the positions of justices must ensure ethnic representation as one of the necessary qualifying criteria determined prior to hiring.

It is ironic that there is no single judge or any officer of law so far appointed from Dalits in the past 60 year long history of Nepal’s modern judiciary. The current state of the matter is such that, if some affirmative action is not put in place immediately, the people are not going to see any Dalit as a judge in the next one decade due to the current process that goes into making of a judge. For an example, suppose, if one person from Dalit community passes the exam of law officer in 2009 s/he will be able to compete for the post of Under Secretary by 2014 only after working for a minimum of four years at the Section Officer level. Again, s/he has to work for another minimum three years (till 2018) at the post of Under Secretary to qualify for competing for the post of a District Judge. If s/he is selected for the post of District Judge, there is a chance for her/him to be appointed in the year of 2019. All this process will take altogether 10 years from now.

On the flip side, it is not at all true that there are no qualified and able people from Dalit community, who can fulfill the basic qualifications to readily serve as judges. Currently, there are about 30 licensed lawyers from Dalit community, who are practicing in the Courts of Nepal. Among them, a few may have 15 years of experience in legal practice and research, being qualified for the post of a judge in the Supreme Court or the Court of Appeals. At least five advocates are eligible for the posts of judges at Court of Appeals, and about ten advocates are eligible for the posts of District Judge with the experience of 8 to 10 years as advocate. (Note: The eligibility criteria for Supreme Court judge requires an experience of a lawyer with related experience of 15 years or above; and it is 10 years or above for Appellate Court judge, while it is minimum of 8 years for District Court judge).

Currently, with the Judicial Council mulling over the several judges’ appointments, the Nepal Bar Association (NBA) has demanded 50 per cent share of these appointments outside the bureaucratic ladder. The leadership of the lawyers’ body has sought the share for the practicing lawyers in order to modernise the judiciary and recognise the best human resources of the profession that lie outside the bureaucracy. The NBA’s way of modernizing judiciary in the new era of Nepal appears to be the only way left for the country to make judiciary more independent and competent in contemporary world, while making it a true reflection of the diversity of the society it serves.

All these reasonings bring us to conclude that making judiciary inclusive is the surest way to guarantee universal faith of all people in the venerated institutions of judiciary, and, therefore, to make judiciary independent by freeing it from feudal barriers.

Related Article:

LEGAL EAGLE: Quota system: Does this mean end of independence of judiciary? - Ananta Raj Luitel (The Himalayan Times, Kathmandu, November 16, 2008)