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Home » Constitution Design » Questions for constitution makers in Nepal » Legal System

Accountability of the Judiciary


Judges are human - and thus may err or be corrupt like other humans beings. It is not easy to provide an adequate system of judicial discipline that does not interfere with their independence. Sometimes, as is the case in Nepal, the judges of the highest courts have so much protection that it is difficult to hold them accountable, while those of lower courts can easily be dismissed. This may not be right - lower court judges may be just as likely to be pressurised by government and others over how they decide their cases.

The Interim Constitution assumes a high level of responsibility and self-restraint on the part of the judiciary. The appointment of judges of the Supreme Court and the lower courts is by constitutional bodies -the Constitutional Council and Judicial Council respectively. However once the judges are appointed, the constitution does not provide any explicit mechanism to hold the judges accountable, except their removal in certain cases.

It provides for the removal of the Chief Justice and other judges of the Supreme Court by legislative parliament by two-third majority of its members. This must be for being: "unable to perform their duties for the reasons of incompetence, misbehaviour, failure to discharge the duties of his/her office in good faith, physical or mental condition". Judges of lower courts can be removed by the Chief Justice in accordance with the decision of the Judicial Council's. Here removal must be for similar reasons, but the Interim Constitution adds "deviation from justice." How effective this procedure is (in terms of holding judges accountable and also not interfering with their independence) depends largely on the composition of the Judicial Council.

Questions that will have to be decided when making a new constitution include:
  • Should lower court judges have more security of tenure?
  • Who should be able to remove judges - is it for example right to give this role to a political body like Parliament?
  • Is there any way in which judges can be held accountable short of dismissal?
  • Whether the Commission for the Investigation of the Abuse of Authority should have the power to investigate judges - not the content of their decision but whether they have been guilty of corruption or other abuse of power (note that under the Interim Constitution that Commission can investigate judges but only after they have been removed from office for abuse of office).
Some countries have tried to provide for accountability of judges without having to dismiss them. Some have codes of practice for judges, which can be used to measure their conduct and perhaps even used as the basis of disciplinary proceedings. There is such a code of conduct for the judiciary in Nepal which you can read in Nepali and English.

Here you can also read the Code of Practice for Judges in the Philippines which might be of interest. However, it should be noted that the judiciary in the Philippines belongs to a rather different tradition to that of Nepal.

In 2006 a bill for the provision of an Inspector General of Judiciary was introduced in the United States Senate: "The Judicial Transparency and Ethics Enhancement Act of 2006" (http://www.govtrack.us/congress/bill.xpd?bill=s109-2678)

Reading

There is a publication by the International Commission of Jurists: International Principles on The Independence and Accountability of Judges, Lawyers and Prosecutors A Practitioners' Guide (this is now available in Nepali also from the ICJ Nepal)

The Chief Justice of the Supreme Court of Canada gave a lecture on Judicial Accountability in 2006: "Remarks of the Right Honourable Beverley McLachlin, P.C. Presented at the Law and Parliament Conference Ottawa, November 2, 2006"

A well-known collection of principles on accountability of the Judiciary is the Bangalore Principles adopted in 2002.
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