Envisioning Justice System Reform

On 18th May 2058, the author's debate was completed. As it fell on Friday, the order was said to arrive on Sunday. That night, the Rajdarbar massacre took place. 5 days off from Sunday due to the death of members of the royal family including King Birendra. Dipendra became the king in a coma. On the fifth day he also passed away. 5 more days left. The order came after 13 days. Some of the authors were jailed, while others were released on bail. Those who did not need to be detained were detained for 13 days for no reason. Who will take charge of it?

The case saw a nearly 23-year-old case pending before the Supreme Court. In case of illness there is physical pain and in case of litigation it is mental and financial pain. The family, financial and mental condition of the litigants becomes miserable. Justice should be swift, swift and accessible. But if there is no institutional change or reform, justice becomes a 'dream' like the case of the plane fare case. There are three principles of justice – justice hastened is justice dead, justice delayed is justice denied and we do not sell justice, we do not deny justice. The Supreme Court is suffering from the second recognition of these.

leadership requires passion and commitment along with will, vision, guts and energy. There is no problem of delay in District and High Courts. The problem lies with the Supreme Court. The years-old case is a violation of citizens' right to speedy justice, human rights, the Constitution and the Convention on Human Rights to which Nepal is a party. It is mentioned in the constitution of Nepal that the policy of the state is to make justice fast, efficient, accessible and effective. There is also a provision that 'alternative remedies including arbitration will be adopted' for dispute resolution. There is a provision to establish and constitute specialized courts, judicial bodies, and tribunals for speedy and effective justice. Even after 9 years of the implementation of the Constitution, nothing happened other than the formation of the 'Family Court'. The failure to form other bodies is the reason for the backlog of cases in the Supreme Court.

Article 14(3) (c) of the Convention on Civil and Political Rights of 1966, to which Nepal is a party, mentions that the case should be tried without delay. The years-old case including the plane charter case not only violates those provisions, but the fundamental rights and human rights of the parties to the case are continuously being violated by the state. The Supreme Court of India has interpreted Article 21 of the Constitution as 'Right to Speedy Justice' i.e. 'the fundamental right to get speedy justice' in Hussenara's case 1979, Raghuveer's case 1986, and Antulaya's 1992 and other cases.  ;

In Article 136 of the Constitution, there is a provision that the Chief Justice is responsible for making the administration of justice effective, if that provision had not been made, the government could have been blamed for the pile up of cases in the Supreme Court due to Article 75(1). The leadership of the judiciary must take the blame. The annual report of the Supreme Court was only a ritual. Just mentioning the number of adjudicated cases and remaining cases in the report does not reduce the cases. A report on the recommendation to reduce the case could not be made. Justice became expensive, slow, messy and difficult. Even though the Chief Justice was assigned the task of reform, the burden of cases did not decrease, nor could justice be done quickly and easily.

Judiciary is a continuation of the year 2047. Federalism has not touched the judiciary. Many types of cases reach the Supreme Court every day. In order to deal with the accumulated issues, the leadership needs the same thinking, ideas, courage, planning, and vision. The leadership should pay attention to the fact that the justice system of thinking and structure of 33 years ago will not only cause suffering to the citizens but also adversely affect the economic development by cutting off the industrial sector, economy and foreign investment. Although three constitutions have been implemented since 2047, the judiciary has not been run. The Supreme Court is becoming unable to give fast justice. Pacey climbs up from the bench and goes back to not be seen. The people and the government are suffering from the delay in justice. If the Chief Justice has the 'Miracle Roadmap of Reforms', it should be implemented. It is time to bid farewell after laying the foundation for reform and leaving behind the identity of successful leadership.

The Supreme Court currently has 21 justices including the leadership. Only the pending cases should be settled, the chief justice and judges should not be involved in any other work during the 'judge hour'. 21 judges of the Supreme Court cannot be considered low in terms of the number of cases to reduce the caseload, if it is to be strict in case administration, payment postponement and debate management. During the King's reign, the Law Minister wanted to increase the number of Supreme Court judges to 35. The courage of the then Secretary of the Judicial Council Kashiraj Dahal did not succeed. If it had been increased to 35, the dignity of the Supreme Court would not have been equal to that of the Regional Panchayat Court. Instead of increasing the number of judges, the cause of delay should be found and eliminated. Uncontrolled payee deferrals became a regular cause of delay. Increasing the salary but the interest of the judge is conflicting, it becomes a 'hamper' to sit in the bench after the full court meeting, the judges have to go for training during the judge's 'judge hour', leave if a chief justice dies, have to go to official ceremonies including oath-taking, the trend of going to conferences, foundation laying and inauguration is also fast. Obstructive causes of justice.

It seems that the case will be delayed due to the constitutional bench. A constitutional bench requires one-fourth of the total number of judges. Only the remaining three-quarters are available for other cases. A constitutional bench is a time-consuming bench. Cases of public interest against the government, cases of interpretation of the constitution fall within the jurisdiction of the constitutional bench. There will probably be few cases where an interim order is not required. Interim orders, priority, pending cases are common. Most of the Constitutional Courts are privileged. Human rights also need to be explained, so it is natural that it takes time. Because of this, the case of the individual gets overshadowed. The Supreme Court, as constituted 33 years ago, cannot deal with the growing number of cases. Therefore, it is necessary to improve the thinking of unitary method.

Because politics is power-centered, politics does not need an independent judiciary. Such politics only gives 'lip service' to improve the judiciary. One is the power-centered politics and the other is that the constitution has appointed the chief justice to make the administration of justice effective. Article 136 cannot hold the Prime Minister accountable for having a 23-year-old case in the Supreme Court. Article 136 places the blame on the Chief Justice. Due to this article, the formation of 'Judicial Reform Commission' by the government is not possible according to the constitution. It is known that the current coalition government may show more number of minimum common programs, forming a commission for judicial reform as well. Another option could have been the formation of a constitutional court of separate existence. But the Constitutional Court did not digest the Supreme Court. The number of cases is increasing in 9 years of experience. Leadership changes, issues are seen piling up. But no one takes the name of the Constitutional Court.

There should be a judiciary according to the constitution. Not a constitution according to the judiciary. But in Nepal the case has been piled up in the Supreme Court due to the constitution according to the judiciary. The constitutional court could not come due to the opposition of some people without study. This can be possible if the parliamentarians play the role of strong legislators and establish a constitutional court through constitutional amendment. However, for this, they should be able to say that justice has been delayed, we cannot wait for years, it is our right to make laws, we will amend the constitution and establish an independent constitutional court. You have no right to oppose the Constitutional Court. If you want to stay, if you don't, you need the courage to resign as much as to protest.

Another situation can be imagined. If he is to be a Chief Justice with an independent judiciary, constitution, constitutional court, 'speedy justice human rights', dynamic ideas, he can take the form of the second Vishwanath Upadhyay. And, by cooperating with the government and parliamentarians, they will be able to establish a constitutional court and give Nepali the right to 'right to speedy justice'. As the term of the current Chief Justice is still left, it is not known what his thoughts are, but 'dynamism' was not seen in the previous leaderships.

may be another option to close the doors of the Supreme Court by ending the case in the High Court itself. Often a case reaching the highest means that the highest cannot be trusted. The blame for this should be taken by the leadership of the situation when the constitution was implemented. The constitution made the high court like a district court. In India, the Constitution has made the High Court as the Supreme Court. That is why high status is good in India. In our country too, the constitution should have provided that the high judges must undergo a parliamentary hearing like the judges of the Supreme Court, the age limit should be 65 years, and if it should be removed like in India, they should only be removed from the impeachment. When the constitution came into effect, the draft was made public for suggestions. However, the then leadership suggested that his retirement age should be 70 years. Which was wrong. Two writs were filed in the Supreme Court of India - to increase the retirement age of Supreme Court and High Court judges. The Supreme Court did not agree to increase the age. Dismissed the case on the ground that he could not see his own case. The High Court only increased the age limit and ordered that the Supreme Court judges retire at the age. But suggested to increase our own age. The Constitution should have provided that the Supreme Court's decision should be exemplified within its territorial jurisdiction, but it did not. Another reason is that when 80 people were appointed to Bhagbanda, political workers also got involved. Therefore, the time has not come to end the judgment of the superior because the superior has not earned the trust.

If the Chief Justice has no other plan to reduce the cases in the Supreme Court, now the structure of the Supreme Court should be changed and the judiciary should be federalized by forming parallel courts in the Union and the provinces. The author is not in favor of federalism. Since ours is a federal system, if we want to make justice as fast and easy as in the United States, the judiciary should be federalized and three levels of Supreme Court, High Court and District Court should be formed in the Union, Supreme Court, High Court and District Court in the state. Provisions can be made to amend the constitution in such a way that the association looks into constitutional, complex cases and those under federal laws, the provincial courts look into civil cases under provincial laws and cases within the jurisdiction given to the provinces by the constitution.

Federalism like ours is also in America and India. In the U.S., cases are expedited because of the three parallel levels of federal and state courts. The reason why a case like ours takes years to be resolved in India is because the judiciary there is unitary like ours. Federalizing the Judiciary can be costly. The concern of the leadership of the judiciary should not be about the cost, but how fast, easy, and accessible justice can be. For this, the Chief Justice had to form a 5-member high-level powerful commission including a senior government lawyer from the Attorney General's Office, a senior legal practitioner from the Nepal Bar who understands the constitution and the judiciary, a senior legal practitioner from the Supreme Court Bar who is also known as a constitutional scholar, and 1/1 MP from the House of Representatives and the National Assembly. That commission had to study the articles to be amended to make the judiciary a parallel judiciary at the federal and provincial level, laws to be made, manpower required, financial resources etc.

In order to make justice fast, easy and accessible, from the old thinking of today's unitary judiciary, a constitutional court of separate existence had to be formed, or the judiciary had to be formed with 3 levels of federal and state parallel courts. If not, the situation has arisen where thousands of other cases, including the plane charter case, have to be handled by the grandson, so it will continue.

– Casey is a former judge.