with the adoption of the parliamentary hearing system of the judges of Supreme Court by the Interim Constitution, doubts and suspicions arose among the various people regarding the possible encroachment of the legislative upon the judiciary. Parliamentary hearing of the judges which is best practiced in USA was entirely a new practice in the context of Nepal. It was feared that the system would hamper the independence of the judiciary. The fear in the minds of the people about such a system is obvious in a country like ours where the background of the parliamentarians ranges from the illiterate to those with criminal background. However, the practice in the last five years has shown that the parliamentary hearing of judges is not destructive to the judicial independence but rather a supportive system for enhancing the judicial accountability and people’s participation in the judicial appointment.
In its simple meaning, parliamentary hearing of the judges refers to the process of approving the person as a judge by the parliament, whose name has been recommended by the independent body as per the constitution. In this process, the person recommended by the independent body has to pass through the process of hearing in the parliament. The United States is a country with exemplary practice of parliamentary hearing of judges.
Judicial accountability comes along with judicial independence. While advocating independence of the judiciary, its accountability cannot be ignored. Judges have to be accountable towards the people. In parliamentary hearing, judges need to pass through the process of hearing by the representatives of the people. This definitely enhances the sense of accountability of the judges towards the people.
Judges on many occasions have been blamed as unelected rulers in a democracy imposing their decisions upon the elected government. The judiciary is often criticized for ignoring the people’s participation in the judicial process. Parliament hearing of the judges enhances the people’s participation in the judicial selection process as the representatives of the people become involved in the examination of the person proposed for appointment, which aids to gain the people’s legitimacy. Likewise, it enhances transparency in the judicial selection process, and the people receive the opportunity to learn about the judicial selection.
Hearing itself is a kind of screening. A person recommended for appointment needs to be presented before the people’s representatives and pass through the questionnaire session.
The background, past history, capacity and the character of the possible candidate is inquired by the committee contributing to selection of the best and capable
Parliamentary hearing as a system is also not free from criticism. Critics of the hearing suspect the possible encroachment of the executive and legislative upon the judiciary. It is opined that the aspirant person for the judicial appointment needs to be dependent upon the members of the legislature for final approval. The ultimate power for the judicial appointment is shifted on the parliament. Critics also argue that the process of parliamentary hearing is against the principle of separation of power. This brings the judiciary under the control of the legislature.
Likewise, it is also blamed as a system of the examination of judicial person by a
non-judicial mind. It is not compulsory to be a law graduate to become a member of parliament.
People from diverse educational backgrounds and professions are the members of parliament. They may not be familiar with the legal field. Even a person with criminal charges
may be in the parliament.
If the hearing is conducted by such persons, the judges will be demoralized and
a potential candidate may be deprived from judicial appointment.
Though the practice is not complete, and suffers from criticism, it would be better to continue it in the coming constitution with the necessary improvements in the existing system. The existing system of hearing contains large scope of improvement. Currently, the hearing system provides no authority to the parliamentary committee to reject the proposed name. Even a single vote supporting the proposed name is sufficient for approval. This has converted the entire hearing process to no more than a show piece. The hearing process will be worthy only if it holds power to send back the proposed name for review if two-third majority of the members find it inappropriate under the extraordinary conditions prescribed by the constitution. Only then the hearing process will have a meaning, and it would not be confined merely as a cosmetic process.
Judicial independence is the pillar of democracy. But, the accountability and the public participation can’t be ignored in the name of independence. Neither can it be a shield for judicial anarchy. Parliamentary hearing establishes a relationship of the judiciary with the people. It supports in gaining legitimacy of the people. Hence, the system needs to be continued in the upcoming constitution along with the improvements in the existing practice.
Shrestha is associated with the Judicial Service