Judicial Independence at the Crossroads: Grappling with Ideology and History in the New Nepali Constitution
Nepal is struggling to produce a new constitution, the blueprint for a new post-monarchic state, and major conflicts over the structure of the new judiciary have arisen. The rhetoric of the debate is deceiving, however. All sides argue for the same things, including judicial independence and accountability, but profound ideological differences vest those words with very different meanings for each party. Resolving these issues will require a mutual appreciation of the ideological differences and of the historical roots of the judiciary’s problems. The path forward begins with recognition that the answer does not necessarily lie in “international best practices” or other one-size-fits-all solutions. Nepal’s particular situation calls for a judiciary that, at least at this stage, emphasizes judicial accountability. As long as a culture of judicial corruption persists, too much emphasis on judicial independence could do more harm than good. Nonetheless, accountability mechanisms can and should be crafted to minimize the intrusions on judicial independence, particularly political interference. Finally, unless and until the Supreme Court can command respect as a trusted guardian of legal rights, its power of judicial review should be entrusted to a new Constitutional Court that is not beholden to any one of the three branches of government. Only by replacing the tried-and-failed (or at least tried-and-flawed) institutions the Maoists have rebelled against for so many years can Nepal hope forge some semblance of consensus on the terms of its new constitution, and chart a new future for the people of Nepal.
David Pimentel, Judicial Independence at the Crossroads: Grappling with Ideology and History in the New Nepali Constitution, 21 Ind. Int'l & Comp. L. Rev. 207; published simultaneously at 5 Indian J. Const. L. 77 (2011)