Monday, August 31, 2009

Politicized Courts

Recently, out of 42 committee members, 23 members of the Constituent Assembly’s (CA) committee to determine the judicial system in an up or down vote supported the provision for appointment and dismissal of justices from the parliament in the new constitution. Although the vote does not mean anything unless the CA decides on whether or not such a provision would actually be enshrined in the new constitution, it is important to understand why it is being pushed by the Maoists. And what it will mean in terms of political freedom in Nepal.

Political interference in judicial processes is not something that is unheard of. The judiciary in Nepal has actually never been fully independent. Be it in Panchayat or post-Panchayat era, political elites always have gotten the verdict the way they want. Has anyone heard of a politician no matter how corrupt he or she is – Nepal has plenty of them – going to jail? No politician has ever gone to jail for corruption or other serious crimes. Almost half a dozen of post-1990 politicians who are considered to be the most corrupt were given clean chit by various courts in Nepal. As free individuals, they are once again active in carving our collective destiny.
All our comrades are trying to do is replicate the well-tested model of using judiciary for political control. The control over the judiciary will take the notion of “civilian supremacy” even a step further.

Judicial activism is nothing new, why even bother? It is important to understand why the Maoists want a judicial system whereby judges are appointed by the parliament. The Maoists know it very well that the independence of judiciary is the biggest threat to any autocratic regime. Be it a radical communist state like North Korea or theocracy such as Iran, appointing ideologues as judges is crucial for the survival of the regime. The judicial system in North Korea, which is notoriously famous for its Stalinist show trials, does not require legal education as a qualification for being elected as a judge or so-called “people’s assessor.” Political reliability is the sole criteria for nomination. In Cuba, the judiciary is not even recognized as an independent branch of the government. Both in law and practice, it is subjugated to the executive. In Iran, where hundreds of reformist politicians, lawyers and journalists are endlessly accused and prosecuted for conspiring against the regime, the supreme leader picks the chief justice. Ayatollah Ali Khamenei recently tapped Sadeq Larijani, brother of Ali Larijani, Iran’s powerful parliamentary speaker.

Is it clear now why Pushpa Kamal Dahal and his comrades want the exact same judicial system that the dear leader Kim Jong-Il and Castro brothers have in North Korea and Cuba respectively. Or, for that matter, Khamenei has in Iran? The Maoists comrades know it very well that without having ideologues in the courtrooms, they cannot nail down political opponents. Anyone who has read Soviet history knows very well what role courts played when it came to handling political enemies. The courts and judges were used at all times against political enemies even though the repressive communist regime relied heavily on more direct forms of repression for matters of high priority, especially during the key periods of revolutionary change. So, all our comrades are trying to do is replicate the well-tested model of using judiciary for political control. The control over the judiciary will take the notion of “civilian supremacy” even a step further.

We have a dysfunctional judiciary now, which needs to be corrected. But if Dahal and his men are allowed to succeed in their latest design, judiciary will be in a gutter. And, it will take ages to get an independent judiciary then after. The judiciary is yet to be independent in most of the former communist countries even after nearly two decades of the fall of communist regimes. Even today in Russia, judiciary suffers from communist era hangovers. The exercise of rule of law is marred by the politicized use of statutes to punish political opponents.It is a well-orchestrated move on the part of the Maoists to destroy whatever independence the judiciary has in Nepal because an independent judiciary that is beyond the executive’s reach and capable of impartial adjudication is a real threat to their aspirations. Independent judiciary restricts the tools that autocrats typically employ to control political life and stay in power.

It is understandable why the Maoists want politicized courts but it is hard to understand why the regional parties are tailgating the Maoists in this issue. The Madhesi parties, among many other things, also claim to be fighting for political freedom. If that’s the case, they should do a little bit of homework on what politicization of judiciary does to the political freedom they claim to be fighting for. The level of freedom in any country is greatly dependent on whether or not the judges of that country are truly independent. A society can be free, and free in a real sense, only when the judiciary is loyal to the law. Citizens of a country where the judges are not independent from influences of power can only dream of complete political freedom.

Laws should be interpreted in an impartial way and justice should be served by competent and neutral judges. Nepali people deserve real political freedom and equality before law not the Stalinist show trials administered by some brainwashed ideologue, who barely managed to get a law degree.

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