This essay, penned by Mr. Bijay Prakash Upadhyaya – a graduate in Physiotherapy from Padmashree Institute of Physiotherapy, won the third place in the ‘Aspirations for Free Enterprise’ essay competition. Read below to find out why he feels Nepal requires a vigilant judiciary to prosper.

Abstract:

It is generally understood that the judiciary of any democracy is dedicated more to interpreting already existing laws than formally establishing new ones. The legislative has often been seen merging with the executive in modern democracies. This can leave the judiciary in a more vulnerable position.
The executive, which runs the affairs of the state, is the most dominant body in any democracy. The judiciary which is expected to check on the executive, is more often than not unable to do so because its substructures do not reach local levels as that of the executive do.
This essay explores thus, on how our governing structures have evolved and it argues on whether in the hurry of developing a strong executive, the development of an equally strong judiciary is sidetracked.
The essay also aims to look how such strong parallel systems can be developed and sustained and how the judiciary can help detect the slightest possibility of the executive’s deviance from the rule of law.

Main essay:

One of the features of evolution was the development of the system of hierarchy. A troop of chimpanzees usually has an alpha male as its leader. The alpha male is stronger, than the rest of the troop and thus gets to easily mate with the females. The social structure of a more developed primate like humans has not escaped this hierarchy. A small part of the population is deemed fit enough to be the alpha and the remainder is apparently happy to be led by these chosen few. It seems that we are fated to bear a leader or a ruling body in our social structures and as we have seen, over the past century, that we humans of all have tried once and again to make this nature of ours as scientific and as democratic as it can get.

The conflict between the inescapable fates of having a necessity of a ruling body with the need for it to incorporate the basic demands of freedom and equality has time and again sharpened and shaped our governing structures. Out of these two, the concept of equality has played the greater part. The simple embedded truth (or rather a belief) that not a single person is either superior to or inferior to the next person implies that a single person alone cannot rule over a population or its part based on his/her personal, whimsical and arbitrary decisions. But again, there exists the evolutionary trend to bear an alpha entity in our social structures. The entity would be the individual itself were it a less grown, less aware and a less evolved society.  But as we have seen that our social structures have grown, most importantly over the past century, to incorporate not only individuals but something that is beyond individuality. And that something would be the ‘Rule of Law’.

In 1935 when Hitler imposed the Nuremberg laws as a part of his solution to the Jewish ‘problem’, the whole of Nazi Germany obeyed those laws. The exclusion of Jews from German society came from the ideology of a dictator. Immensely immoral and unscientific, it nevertheless became law of the Third Reich. But it can never be argued that Nazi Germany at that time was not a nation that endorsed the ‘Rule of Law’. Hitler had come to power not through a coup but through completely democratic means. He had gathered popular support. And to exploit such support and concentrate it to a completely opposite system of governance (fascism) must have required steering the national mood to a completely opposite line of thinking. Instilling ‘Rule of Law’ mechanisms unto governing structures can never be the final solution. Rather the psyche of the mass, the mindset of the nation out of which laws evolve is the most important thing. If we have
to analyze Hitler’s governance and the terrible results it yielded, we can simply come to a conclusion that the laws that were then governing the nation were imposed without any filtering mechanisms. The executive head had become the sovereign and the judiciary was under him.  And the national intelligence didn’t place much doubt and criticism on this fact. Our country Nepal, after it had overthrown one of such manifestations (i.e., monarchy), has progressed to bear a national mindset to demand for a more inclusive constitution.
But ensuring that such qualities get engrained in our laws becomes a part of the more comprehensive concept of rule of law. Once a consensus is agreed upon, the more fundamental question of implementing it is going to come about.  India, our vast neighbor, is a country where independent judiciary has been, to a certain extent, well established. But time and again news of political scams, and uncontrolled corruption surface in international media.

If we were to analyze the three bodies of a democratic country like India, we can see that the legislative body emerges out of supposed complete participation from each of the citizens through general elections. The executive body emerges out of the legislative body and so again the participation of the population is ensured here. But when it comes to the judiciary we cannot see it emerging from a more local level. In Nepal, an elected assembly has been set up to draft the constitution which is a major manifestation of such participatory law making process. But once those laws are made, will the same extent of local participation prevail? The executive body consists of a tough hierarchy and it cannot be denied that individuals who are placed in different levels of the hierarchy can be, time and again, influenced by the greed for more power. And if such hierarchy has got its roots in a remarkably local level, has the judiciary, which is supposed to check on the executive among other things, branched out to the same level? In other words can we solely rely upon the morale, honesty, sense of duty and such abstract concepts of the individuals in the executive for its lawful functioning? Should there not be a more participatory and penetrated structure of the judiciary?
Our judiciary system has been designed in such a way that it fetches us justice when asked for. People of a democratic country have that choice to seek for justice when wronged or leave it be. The judiciary system is concerned with interpreting the already established laws by the legislative.  It is left to the executive to enforce the laws.  The good thing about this is that there won’t be unnecessary control and interference in the functioning of a nation. Ironically, the bad thing is that there might not be the required control. It boils down to how a state seeks balance between these two polarities. For a country like Nepal which has just emerged out of a state of armed conflict, it becomes necessary that such equilibrium be created and established. Over the last five years, people have fought for truly claiming their rights. People now seek a broader identity.  But the nation is still in a state of entropy and it becomes the responsibility of the state to maintain order in this apparent disorder.

It would be wrong to say that Nepal doesn’t bear a parallel checking system of governance. We have got the ‘Anti-Corruption Commission’ which has very recently shown heightened activity.  It has, to a certain extent, embedded the fear of the need of accountability in people but that alone is not enough. It is uncertain to what extent the jurisdiction of this system lies. The ‘Akhtiyaar’ doesn’t bear a well-structured hierarchy. A bigwig is chosen to be the commissioner. A huge mansion is set up in the capital. But what about its lower, branched out, more penetrative structures? They are few and numbered. A common man faces indecent routines of bribery even when seeking the most mundane of state sanctions. Who is to check on it?  A hectic protocol is set up to determine justice. But that is going to cost him much more. And it becomes much easier to slip out the note and give it away.

But let us try and visualize an adjacent scene. An anonymous person sits inside an office.  We don’t know who he is, but when a person comes in with a request to see his affairs through, they are directed to him, sans requests for ‘tea money’ by clerks. The man inside sees through the documentation and processes the papers, like they are expected to. Why is this picture so hard to paint for the state? But it becomes a mammoth task again to try and ensure that that person inside doesn’t engage in corruption. As stated earlier, if the anonymity of the man can be maintained and if any personal contact with him be avoided then such level of transparency can be attained to a certain extent.  However this is, in all honesty, a very implausible scenario. However dense and webbed a net is made, some amount of residue is always going to escape.
This is just an overly simplified model of how a well-structured and decentralized judiciary might work. Corruption can be one of the many burgeoning issues it can address. The judiciary should make its presence felt to check on all of these anticipated deviations. From its usual role of interpreting laws, it should now extend to check on the executive. The idea that a judiciary can and will provide justice should be embedded well into the mindset of the people. From citing examples from Adolf Hitler to petty corruption, we saw how it can be argued that our governing structures do not contain sufficiently parallel forces to examine these diverse issues. We also argued that an independent judiciary can still contain a more decentralized and localized structure without violating the fundamental norms of a democracy and moved on to an ideal fascination of a completely anti-corrupt state system.
But the judiciary can’t help but bear occasional manipulations from the executive. The executive is responsible of the judiciary’s budget and it might not want to spend much on its own critics. But as discussed earlier, an acutely aware national mentality should understand that the nation of their dreams should contain an equally strong judiciary as well. For Nepal, in particular, it is immensely necessary that with the recent zeal and excitement the common people carry for a representative constitution, there be established a mature understanding that an effective check and balance system should be instilled in our governing structures. And that would mean making the judiciary more independent, participatory and penetrated.