Semanta Dahal on the Political Question Doctrine, the Issue of Judicial Independence, and Necessary Reforms in Nepal's Judiciary

Saumitra and Semanta

Saumitra: [00:00:00] Good morning, afternoon and evening, wherever you're listening. Welcome back to yet another episode of Pods by PEI. Today I'm conversing with Semanta Dahal, a practicing lawyer, and the topic of our conversation is the political question doctrine in Nepal's judiciary. Welcome to the show, Samantha. 

Semanta: Thank you. I'm delighted. And thanks for inviting me to the show. I've been following the PEI Pods for a long time, and I think I find- I found those episodes to be very intriguing. And it is- and also resourceful in many ways, because I think it has supported the policy reforms drive that PEI is trying to implement in Nepal, and I look forward to the conversation.

Saumitra: Great. We are not. So I want to begin this conversation on the premise of your article political questions, Your Honor. published in the Kathmandu Post some time ago, where you discuss Nepal's Supreme Court having to often tackle constitutional disputes, which are both legal and political in nature. In this article, you are essentially discussing the practice around enforcement of the political question doctrine. [00:01:00] 

For the benefit of our listeners, maybe, uh, briefly elaborate on this notion to begin with so that we- we make some grounds, talk about how actually the political question doctrine got established and what it is. 

Semanta: Sure. Thanks for writing- citing that article that I wrote a few months back for the Kathmandu Post. The aim of that article and other columns that I've been writing for the Carpenter post on the third branch is to examine primarily to see if law. has started occupying the space of politics. Or law has taken, law has started taking over the political space or not. That is the main name of the article and also the column.

With regard to this whether, when and how this political question doctrine got established or enshrined, I think we might have to go all the way back to 220 years ago. That's a long time ago. That's a long, long time ago. And it was tumultuous time in U.S.you know, politics was still fragile, fragmented.

And it was right after the constitution that got promulgated in the US, like 20 [00:02:00] years after the US constitution was passed. I think they were also very young democracy back then. Uh, and, uh, and the political parties were in the deepest, bitter rivalry. Um, so, and the US Supreme court came into this picture between the two political parties dispute back then.

So I think, uh, I can elaborate on the case a bit. I think it is the seminal case of Marbury versus Madison. And this is where, you know, simultaneously two doctrines got established at the same time. One is the doctrine of judicial review. That is the power of the court. to review the acts and the laws passed by the parliament and also the power of the court to see whether issues can be delineated between political question and a legal question and how can, you know, court then deal with the legal question primarily in delivering these decisions.

To highlight what had happened in that case was, uh, I think I can briefly give you the facts also because it's pretty interesting. Uh, there are two major [00:03:00] political parties in the US back then. One was the Federalist. On one side, and there was the Democratic Republicans, they were still together, uh, back then, and those two parties were fighting the presidential elections, uh, John Adams, who was the president, uh, lost elections, uh, and he was representing the Federalist Party, and then Thomas Jefferson won the elections, uh, he was from the Democratic Republican background, but there was a long period of delay between the election of Thomas Jefferson and his inauguration.

So, um, John Adams was still the president and he wanted to fill certain federal vacancies, especially in the courts during that time. So he started filling the vacancies. And number of positions in the high court in the federal courts are appointed, including a person called William Marbury was also appointed for one of the positions and he was confirmed by the Senate, but then he was not given the paperwork saying that he's been appointed now in that transition, Thomas Jefferson came to power.[00:04:00] 

And Thomas Jefferson asked his, um, uh, Secretary of State not to issue the paperwork. So William Marbury didn't get his appointment. Then he went to the court asking that he should be appointed to the position. The court then started evaluating all the facts situation and came to a conclusion. Primarily, I think, uh, It was, uh, Chief Justice, uh, Marshall, John Marshall, who then didn't want to get into too much of dirty politics between the two parties because he was worried that if Supreme Court issues certain decisions and Thomas Jefferson, who is the new president, doesn't abide to that, then it'll be an embarrassment to the court.

So he played very thin line there. And a w established the doctrines, uh, both judicial review and, uh, political question doctrine. Two, two statements. I think the decisions are very, uh, very critical. One, he says that it is emphatically, uh, the province and the duty of the judiciary to say what the law is.

That's one question one, one statement. And the other other statement that he, he [00:05:00] says is questions in the nature. Which are in, which are political in nature, which should be decided by the executive or another constitution should not be presented to the court. Now, both these statements are mutually conflicting to some extent, but at the same time, I think court also wanted to play very safe line between the two to say that, okay.

Political questions should not be brought to the court. This is how it got really established. And the doctrine got a little more, uh, I would say developed in late, uh, in 1960s, uh, during the case of Baker versus Carr. And I think that is what we've been following in Nepal so far also. And that's the context.

I can elaborate on Baker and Carr also, I think. Uh, but then it Baker and Carr, what it did was it primarily laid out six criteria then to the mind between distinguished between what is a political question and what is a judicial question. 

Saumitra: Uh, can we say what those six criteria is work? 

Semanta: I can elaborate on that.

Let me start. I think let me just give you a background of the Baker versus car issue. Also, I think [00:06:00] The case again was around 1960s, if I'm not wrong. Charles Baker was the mayor of a town in Tennessee, state of Tennessee. And instead of Tennessee, there was, uh, the redistrict of districts happening based on the population.

Now, what Baker contested was, during the redistricting of the districts based on the population, it was not, uh, done in a very, uh, reasonable manner, and the population was not, uh, reasonably accounted to give equal districts in, in the way it was required to be done. So then he went to the court, uh, saying that, uh, this is wrong.

And the Supreme Court then came to a conclusion that, uh, malappropriation is a justiciable violation of the constitution and that, uh, Supreme Court could intervene in that. And Uh, re ask, redirect the, the, the re registration to be done once again. So in doing that it, it kind of elaborated six criteria to see what could be a legal question or it could be a judicial question.

First, uh, it [00:07:00] said, uh, whether the executive or the legislature had the expert's authority to resolve the issue. That is the first question to be determined. Second, if the issue could be judicially managed by the judiciary or not. Uh, you know, whether, whether the judiciary had the power to discover the issue in question.

Third, because policymaking really comes into the picture or the domain of the executive. whether judiciary can really use its discretion to make some certain policy determination for the executive or not. Third, fourth one was, um, whether by intervening any decisions by the taken by the judiciary, whether that will amount to disrespect by the judiciary of the executive.

Fourth one. Fifth was, um, whether or not, uh, you know, the political decisions, uh, can be questioned. Uh, or whether or not the court will have court, will have, the court, court will have to audit to the political questions already taken without [00:08:00] asking any, any question. And last was, you know, there could be interpretation of the same issue by multiple branches of the state, and if it is interpreted in different way than how ju citizen is interpreted.

whether there will be an embarrassment to the judiciary or not. So based on this kind of six criteria that the U. S. uh, uh, Supreme Court kind of established, uh, the, for the first time, you know, a detailed way of examining whether a question is political or judicial or not. So, uh, 

Saumitra: going by the genesis, as you've, uh, pointed out, Uh, this looks like a function enforcing the principles of separation of power in the state.

A lay understanding would be that this is some sense a boundary line between the judiciary and the executive, but, uh, something that the judiciary enforces, right? It's not the executive saying that this is the boundary line, but it's, um, in some sense, uh, judiciary's own formulation as to whether they are to take certain cases or not.

Semanta: Absolutely. I think, uh, The traditional [00:09:00] explanation of Doctrine of, uh, Pleasure, uh, Doctrine of, sorry, uh, political question is preservation of separation of power. It is to delineate, okay, what falls under the issues to be decided by the court and what falls and what is, what really falls in the domain of law and what is more constitutional that the court could decide on.

So it is mainly intended, as you said, uh, for, to respect, uh, suppression of power. And that is what the view, the Nepali Supreme Court also has taken. And I can cite one case here. This was the first. Case, uh, of house dissolution that happened in late 2040s, around 2049 or 50, 50, 51, I think, um, when, uh, back then, erstwhile, uh, prime minister Girijaprasad Koirala decided to dissolve the parliament and call elections.

Although I think, uh, the Congress party back then was the majority in the majority in the parliament. The Supreme Court, uh, then examined the issue because it was presented to the court. Supreme Court then saw what are the [00:10:00] reasons, uh, behind Girija Prasad Koirala, uh, taking the decision to dissolve the parliament and what are the political reasons that the prime minister had cited, uh, for that.

Then Supreme Court said, I do not intervene. or look into what are the political decisions that political reasons that the prime minister cited for dissolving the parliament. That's not my role. Uh, because I can't go behind and evaluate the rational and the reasons behind the political reasons that the prime minister cited, because that will be going against the separation of power.

So this is how, you know, it is a, it is a doctrine in many ways established by the court for its own benefit in many ways. So that, you know, it doesn't, um, intervene or does not, uh, you know, use up some of the powers of the other branches of the state. 

Saumitra: Excellent. Just as we are on the topic, I want you to understand, uh, you mentioned, uh, the, the Supreme Court case, uh, from the U S where they had laid out six principles.

So, uh, as this is being practiced in Nepal, do we have [00:11:00] certain principles? Uh, similar principles laid out, or is this very prerogative, uh, of the Supreme Court practice in Nepal that, uh, they decide what cases to take or not take, um, given their own understanding, or there are principles within the judiciary system that are established to kind of, uh, make those 

Semanta: inferences.

The principles are laid out. Definitely. Uh, the principles are similar to what Baker and Carr has laid out. I think one point that Supreme Court has really emphasized in Nepal's case was whether the issue in hand or the issue to be decided by the court can be discovered by the judiciary or managed by the For the people who are not in in layman terms, whether it is judicially manageable standards or not.

That is something the court has really expanded on. The Supreme Court of Nepal as expanded on a number of times. But then that question, I know when it gets discussed in the court could could have arguments from both sides. Um, and I can cite, I can currently give an example of the latest, uh, controversy [00:12:00] that happened in Kochi province, where the speaker, whether he was entitled to vote for the formation of the government or not, or whether he was entitled to side with one of the parties or side with one of the, in a coalition for the formation of the government or not.

And that came to the Supreme Court. It was raised that there is an issue that Supreme Court can't manage because it is not judicially manageable standard. It doesn't fall under that framework. Uh, in that case, I think the Supreme Court did say that it is the role of the judiciary to see if the Constitution has been violated or not.

And Supreme Court came to the conclusion that speaker who's supposed to be the umpire of the Parliament of the House, siding with one side goes against the Constitution principle. But if you look into the Constitution, uh, there are no explicit provisions saying that for formation of government, the Supreme Court, the speaker can't take sides.

It is only for other motions present to the Parliament where there is an explicit bar on the speaker not to vote, [00:13:00] not with regard to formation of the government. But then Supreme Court drawed the inference that if in other motions, uh, the speaker can't vote, has to remain neutral until there is a tie of votes.

Then even for, even in the case of formation of government, uh, the speaker should not be, uh, you know, taking any. So that is where I think, um, you can see that and in a very layman terms, or if you examine the issue speaker, you know, participating in a democratic process of voting could be, could be said that it is not an issue that the judiciary can really manage.

But at the same time, it can be argued that judiciary can manage because. There is some violation of the constitution at the same time. So I think it is, it is very difficult to make a case in, in, in any issue where, whether in which side the Supreme Court will take a stance on, because I know sometime what really happens.

And I think I'll borrow this quote from, I think did [00:14:00] talk real, I think who gave the score. He said that scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question or political question gets converted into judicial question somehow or the other.

In, in the end, I think. And that's the, I think, context there. And it's very difficult, you know, to really manage that. How do you really bracket between the two? 

Saumitra: I'm trying to put myself, uh, in a position of a judiciary who has caught a question in front. Mm-hmm. , uh, and needs to abdicate. So in the Nepali system, uh, does it work in the sense that, um, uh, there are norms defined within.

Within the language of law where, uh, the judiciary, when a question comes, they go and look at some tick boxes, maybe, okay, if this is right, then maybe this is a political question or this is a legal question. Or is it based out of a previous? Principles and practice, uh, of law that the Nepali judiciary has acted upon, or it is a matter of one judiciary trying to understand what [00:15:00] the case is and then trying to adjudicate whether that is a legal or a political question, or it is all of those above.

Semanta: Yeah, I think that's a very important question and very valid question, Sumitra. I think in terms of the law saying, okay, this is how you can distinguish between a political legal question. There is nothing written in the law and law in the sense I'm talking about legislation, legislations. But the judiciary is also allowed to make laws because through the decisions, you know, so when judiciary tried to try to make laws, they have established certain criteria and they borrowed the principles of Becker and Carr in Nepal's case too.

And, uh, As I said, you know, those tick boxes are there, but where, which judge will say, okay, the tick box is right or wrong depends upon that particular factual scenario and the case and the arguments presented. And sometimes there could be extraneous political factors that could come into play. at the same time.

Saumitra: Excellent. Um, just before we move forward someone that I think there's something that I wanted to clarify. Um, as we are on the [00:16:00] topic of separation power, there's this norm around separation of power and judicial activism. So how far off is this idea of judicial activism from the political question doctrine?

Just wanted to clarify that. 

Semanta: Um, within the political question doctrine, I think there could be Both judicial activism and judicial restraint will have some space to play. And I think it'll be wrong to assume sometime that, you know, judicial activism and judicial restraint are mutually exclusive. One has to choose between, between the two.

And my take is that depending upon any factual scenario and the issue or the dispute to be resolved at the court, I will lean to one of those. I could lean on to judicial activism in certain case. I will lean to judicial. Uh, restraint in certain case, for example, if I were, as you said, you know, you are assuming to be a court judge, like if I were in the same place that I would say, okay.

If, if my decision or my, if me assuming the court, assuming the [00:17:00] responsibility to adjudicate the issue will interfere the democratic process, then I would not try to interfere because it is, it is primarily the role and the responsibility of the political institutions and leaders having political role to.

implement the constitution, especially a young constitution, which is still to be developed. And in that case, if it is really an interference of a democratic or a political process, then I would not try to intervene, uh, and, and, you know, restrain from assuming the restriction. However, if it is at the same time, the issue could really help in making sure the constitution leaves as a living document, continues as a living document, and you could infuse life into the constitution because constitution, when it's passed, is meant to last for centuries.

You know, it's not designed to 20, 30 years. So if it is a case to make sure that the constitution stands as a living document and we try to [00:18:00] harmonize the constitution to meet and adapt or modify. To the social developments and aspiration of the people, then perhaps there is a need for the judiciary to be more active.

And the, the case I'm trying to make here is because, uh, I think compared to other political institution, judiciary can be a little bit progressive and the reason is not judiciary. Yeah, judiciary can be progressive. The reason is, the main reason why judiciary can be progressive is. In other institutions, uh, executive and, uh, the legislature, arriving at a consensus is a very excruciating process.

But within the judiciary, if the bench is, you know, two or three people, they can arrive at a, easily at a consensus. So, because arriving at a consensus is easy at the judiciary compared to other institutions, the judiciary can be a little bit more progressive. So that's the reason I think if you want to, you know, implement the constitution as a living document, then in that case, maybe judicial activism is required.

And that's been the case, you know, our human rights jurisprudence got expanded because of the activism, our environmental jurisprudence, you know, protection of [00:19:00] environment got expanded because of activism, even voting pattern, or even the right to vote of absentee people who are resigning also outside of Nepal.

That's the case of Supreme Court taking an activist stand, you know, in many ways. But that is also required because at the parliament or executive coming to a conclusion that okay, we want to allow voters outside Nepal to vote, I think that will be a long drawn process where they might not come to a consensus, but the judiciary could really arrive at a quick consensus there.

So because of that, I think judiciary could be progressive and for judicial to be progressive, judicial activism may be required. So depending on the issue, I think we could lie on both the sides of activism and, and, and restraint. 

Saumitra: This is also a highly contested topic in the sense, uh, you could easily be stepping into the executive functions if you're more.

Yeah, that activism mode, right? There have been examples globally where judicial activism is often criticized by opponents, especially from the executive for overstepping [00:20:00] boundaries. 

Semanta: Exactly. That's absolutely true. And in Nepal's judiciary has also suffered that, uh, and has received its fair share of criticism in certain cases.

Definitely. 

Saumitra: Before we move the discussion further, Samantha, I think it will help me as well as the listeners to unpack this question of political doctrine through questions. And I'm putting you in a spot and a challenge for you is why don't we go out and list down three cases, discuss briefly a case.

One would be a topic where the where judicial Where the judiciary in the sense, uh, use the political question doctrine to not intervene because they thought a matter was political. Um, the second case could be something where the judiciary acted on, uh, saying that this was in fact a legal case and a third case, which you think lies in the gray for the third case.

We won't say if it was how the judiciary acted, but we'll just throw it out for the listeners to decide for themselves what the case [00:21:00] was. 

Semanta: I think third, I think all good, uh, way to start off either conversation and I could, I think, uh, rely on some of the cases that are pending in the court or already been decided to discuss all.

Let's start with the third case with the gray area. Okay. Uh, we go back to 2020 when the Constitutional Council appointed, uh, certain, uh, uh, uh, positions, certain people, uh, to different, uh, constitutional bodies, including the CIA, the Commission for Investigation of Abuse of Authority, and also to the Election Commission, other places, other bodies.

Uh, before that, uh, appointment, uh, there was a very long term process that is going on where the opposition parties were invited to the meeting because Constitutional Council also has a representation from the leader of the opposition party. But they could never arrive at a conclusion, arrive at a decision to really appoint the people.

Then the oldest government back then brought about an ordinance, you know, changing the composition, not even changing the composition, [00:22:00] changing the, how we could call meetings. So he, the ordinance basically said, okay, the first meeting, this is the quorum required and no one turns up, people don't turn up, then this is the quorum required, the second meeting is called.

It was done through an ordinance. So the first meeting was called, not everybody turned up, including the Speaker of the House, Agni Sarkota back then. Then he, the Prime Minister called another meeting where through the audience he had already amended the law. So he could then appoint, uh, based on the quorum that he had and all these appointments are made.

My question now is, uh, that, that issue has been challenged to the court. Now, whether courts would say this is a political issue or a legal issue, because, you know, if there could be arguments from both sides, um, It could be considered legal issue to argue that because constitutional council spirit and the requirement is that there should always be a representation from the leader of the opposition and avoiding that.

[00:23:00] It's a breach of constitution. Then that is, that becomes a very legal issue. And the court could definitely say, okay, I'll intervene and say that what I was done is wrong. But I'm just evaluating the scenario here because I can't comment too much on the court case, which is subdued. Second is court could also take a stance saying that, um, The prime minister has the authority to issue ordinance when the house is not in session and that is allowed under the law and what the prime minister has done is a political process because appointments to all these bodies are political, a political process done through the executive is done through the executive.

So I will not. The court will say, I might not want to, uh, intervene. So there could be both scenario there in a typical, you know, this kind of a case where there's a gray area to argue. 

Saumitra: Okay. This is the third case. And, uh, it's for the listeners to decide if this is a political question at hand or 

Semanta: a legal question at hand.

Yeah, exactly. I think this is for the listeners to, or less now, in fact, it's on the, in the court of the Supreme court in many ways. So I think at some point [00:24:00] in time, the decision might come, but, uh, let's wait until then. And, uh, the listeners can really also examine from this, from their side. Let's now see the second example, uh, where you said, um, okay, this is a legal question.

It's not a political question. I think there's a case again to really cite, uh, a previous Supreme Court judgment. Uh, this is about, I think, okay. 1995 or 96 when the Supreme Court issued the verdict, there was a gentleman called Carl Karki. He was already a ambassador to the France, but then government, uh, or the king had the power to, the count had the power to appoint, execute, appoint, uh, the, uh, ambassadors, uh, after taking advice and consent of the council of ministers.

So Colin Bikram Karki was then, um, also appointed or given ambassador post for other two countries, Spain and Israel, including France. But on the record, there was no paperwork or [00:25:00] correspondence saying, okay, the councillor minister had, councillor minister had given his advice and consent. Although I think the appointing power was still with the King.

But the Supreme Court said if there is, uh, and you know, it also said that, uh,

that, you know, there is a political relationship between the Crown and the Council of Ministers. And that political relationship has to be adhered to. And that it said that if there is no advice and consent that really happened from the Council of Ministers to the Crown, then Crown appointing the person is against the Constitution.

So that is something that courts really intervened, saying that although it was a political process on how the appointments are made, but the political process lacked some due processes. Yeah. And that's the reason the court intervened. Uh, so that is an example of where court had really intervened in one case.

Um, the other one was. [00:26:00] And third is, uh, again, they didn't take up a case. I'll cite, uh, if I remember this case facts very well, I think it was, um, it was, I think in the provision of the interim constitution, which it said that there will be a commission that will be constituted by the executive to restructure the state in terms of federalism and other recommendation.

This was still before we passed the constitution. I think, uh, 2000. 1011 is when the case was case came. And one of the petitioners, Dr. Chandrakant Gevali, um, went to the Supreme Court saying that a writ of mandamus has to be issued to the executive. to fulfill that responsibility of establishing this commission for restructuring the state.

Supreme Court came to a conclusion that I think that is not for me to decide and recommend to the constitution, the executive. If it is written in the constitution, the executive can do it. It is a very political question whether executive where it wants to constitute the commission. So I will not intervene.

So there are [00:27:00] In all three examples of cases here, but more or less, I think, uh, to sum up more often than not, you will find that a political question get getting converted into a judicial question. And Supreme Court taking sudden stance on this issue. You 

Saumitra: talk about this in your own article in the Kathmandu Post as well.

These were brilliant examples and something that really stands out for me on the topic is this question of judicial independence, especially if you've been somebody who's observing how the politics has unfolded in Nepal. In the judiciary.

Um, in the question, um, being questioned time and again, and the reputation of the Supreme Court kind of, uh, being tarnished with this particular norm of judicial independence. Um, uh, when, when you, in some sense, you, people call them, uh, political expendancies of, uh, the judiciary in, in national sensitive matters.

Um, even often criticized by Nepal's own judicial fraternity for certain [00:28:00] decisions. How do you see this question of judicial independence in Nepal, especially in the context of what has happened in the recent past? I'm especially interested to hear if, if, uh, if there are two, three key issues or factors, um, within institutional provisions that kind of really, um, expand these questions of judicial, uh, independence in Nepal.

Semanta: Okay. I think very good. Good question. And something that I've been thinking and, you know, trying to see more clearly and have my thoughts cleared more deeply on those issues. But I think I'm still hazy on some of some of my thoughts on this. Um, but let me start. I think what I can definitely and something we should be also considered about, uh, this is the longest period in history where Nepal had a democratic stability.

It's a 2006 to Uh, 2023 now, I think it's been the longest that Nepal ever had or enjoyed and very rare, uh, that stable democratic period, although it's stable democratic [00:29:00] period, uh, the, in many ways you can question that in the political parties that we never had a strong government in place. Uh, the prime minister is kept on changing, but that is more on the prime minister and the government not being stable.

I think in terms of political stability, I think there's still an democratic stability. I want to say political stability. Let's say, let's call it a democratic stability. And that's a, that's been a rare occasion there. However, that is on the executive side. If you compare to the judiciary side, judiciary has gone through the most tumultuous phase in Nepal.

Um, can you elaborate on that? I'll say, you know, never happened, you know, in that before that, that, uh, chief justice who was sitting chief justice was trying to be impeached twice. Uh, what sitting chief justice was made to resign or had to resign because of his own shortcomings, including his, uh, question regarding his citizenship.

A person who was recommended by the constitution council for the position of chief justice [00:30:00] was not approved. Or was denied by the Parliamentary hearing committee. So, and, and, and the latest fiasco, you know, of Cholanda Samsarana, where, you know, there are 30 or 60 days when the court didn't function well.

And there was a strong impeachment process, impeachment motion that filed against him, and he had to really defend. Uh, his stance. Although I think the parliament has not really given his final verdict on that. So that way, you know, this kind of a situation has never occurred in Nepal's judiciary before that.

So judiciary is also going through a very difficult phase, I would say. I think, and I think some sense of stability has come back, uh, because, uh, and also even latest Harikrishna Gargi. He had to be, uh, acting Chief Justice for like almost how much of his tenure, 90 percent of his tenure time. So, so you can imagine, you know, judiciary is not in, in that good shape that I think a robust shape that it is supposed to be.

But in the executive side, although the [00:31:00] prime minister has been changing, there is some sense of democratic stability that here in the judicial side, if the Chief Justice is not stable, I think the entire judiciary is not stable. And that is the repercussion that we are facing right now. And I'm, I'm going to the question now, judicial independence.

Now, let's talk about that a bit. Um, what we need to see is, uh, In country's governance, now it's not only the executive, but even the judiciary has become an integral part of country's governance, not, not only the executive now, because so many issues come to the court from, you know, project development to environmental issues to whether a person could be given amnesty or, you know, all that, all sorts of issues.

role that judiciary is also playing in the country's governance now. And in that case, I think, you know, emphasizing too much on judicial independence and not talking about in judicial accountability in the same path [00:32:00] will not be good. I think judicial independence and judicial accountability now should be treated in the same path.

And that is what I think the treatment in terms of that too in institutional harassment is not. equal. I'll just 

Saumitra: stop you here for a moment. Some of the very interesting idea that you brought about on judicial accountability. Um, if you were to think it from the executive side, the executive of the accountability and political parties would be that it's to the voters, right?

Um, what is the reference when you're talking about judicial accountability? 

Semanta: I think ultimate accountability, uh, for judges is that if they don't perform well, then there is the impeachment process that could be presented and they could be removed. It's not very easy to remove them because you need a voting stent in the parliament to remove them.

But I think that is a very, um, extreme. accountability. I think we should figure out some way to make justice accountable somewhere in between, you know, making, and that is [00:33:00] what I'm trying to, you know, talk a bit more about. For judicial independence, there are robust arrangement institutions, uh, provisions in the law that are in place.

The constitution of Nepal, I think if we compare to any other constitution gives enough independence to the judiciary. Uh, in terms of institutional arrangement. There could be argument, no, this is not enough. But I think in terms of when you compare, I think it is still robust enough. But whether there are adequate provisions in the law to make judges accountable or not.

I mean, you know, when I said equally treatment, uh, equal, equal footing, uh, both, uh, judicial independence and judicial, uh, accountability for accountability, there is not enough provisions in the law. Definitely that, that provisions are lacking, uh, in many way, there is one code of conduct for judges, but that only talks about code of conduct.

You know, it doesn't say, okay, these are the standards which judges should abide by. And these are the standards based on which the performance of the court performance of the judge [00:34:00] will be audited. that is not there in the law. And without that, we can't really give so much of independence to the judges and not make them accountable.

So we should now try to also have provision in the law which says, okay, these are the standards against which the performance of the judge be measured. And there will be yearly or annual or some, you know, some by, by annual kind of performance audit of the judges. And that way, I think we could really start having some and Uh, accountability that we could, uh, expect from the judge.

The reason is judicial independence is not only independence from the executive, you know, and judicial independence, the reason that is needed is to make sure that judges function more well, uh, not just being, you know, away from the executive. And I think I'll try to just summarize the state, my, my thoughts here.

For me, I think, uh, it is now required, uh, that the [00:35:00] Institutions which are meant to oversee the judiciary, including the Judicial Council, is given more expanding role, not just to appoint judges, but also to measure the performance of the judges against certain standards. 

Saumitra: That's an excellent point. And I think I'll come back to it when we're talking reforms in the judiciary.

But something that I wanted to follow up with, uh, on, on that thought is in, in your article in the Kathmandu Post, um, you, you note, quote, On more occasions than not, the political actors themselves are more than willing to cede authority to the judiciary. Why do you think this is the case? Is it emanating from the inability of political parties in Nepal to draw political consensus on constitutional matters and hence favor the role of judiciary?

Or is it mostly driven by the fact that political actors have significant leverage? In the court and because they can't draw consensus, they feel that it is easier to kind of negotiate agreement and support decisions [00:36:00] for their own interest and then then go to the judiciary. We've seen this trend recently in the recent Supreme Court cases on on government formation and all.

So why do you think this this exists? 

Semanta: Um, I think that statement, I would not have written that statement if Nepal have had a strong. Executive in the last 15, 20 years, Nepal never had that. I think there's always been a coalition of government and still Nepal was going through a very transition kind of phase of, you know, passing a new constitution.

I think I would really wonder if. If there are really strong government in place, whether judiciary can really withstand some of the decisions or the measures taken by the executive or not, I think that phase we have not got to witness yet. And that is where I think the judiciary will be really tested.

You know, now, the executive is also slightly weak. And that is

the reason in terms of comparison, you [00:37:00] know, you never know when the government is going to change. So that's the reason I think judiciary is trying to. Has that have had that more clout really intervene the decisions on a question? I think it is both is why I'm saying that the political actors really want to see the authority to the judiciary on certain matters is both one is certain that you know, because The appointment of judges is not free from political influence and alignment.

Uh, some judges, uh, the politician will consider will align with their ideology. I'll not say with the party, you know, in, in many ways, and that's even the case with the us, uh, Supreme court, uh, because, uh, you can always call that person is a Trump judge or that is a Biden judge or Obama judge in us Supreme court.

And I think that's the reason how, you know, The abortion case got very changed very recently because the Republican and Democratic [00:38:00] judges background and the number of judges representing both these ideologies, I think numbers got changed in the court. So same in the same as the case, I will not, I will not say same, but similar as the case in Nepal also that, uh, because, uh, there is some political.

Backing a political, uh, political reason. On, on, based on which, uh, the judges are appointed, the Southern political parties will be considered more comfortable that these issues are handled by the justice. Second is also because I think the politician, when they arrive at a consensus and they don't want to be held accountable, responsible.

Or to use a word, blamed for the decision they take. So they will say, okay, we arrive at a conclusion. Now let, someone will definitely challenge this before the court. The court will give his final verdict. So then they don't have to, you know, be, be made responsible for the decision they take. So I think it's both, both the cases.

I'll give you an [00:39:00] example. I think back then when the constitution making process was going on, the CA, the Constitution Assembly's term got expired. And he was extended a number of times. Is this the case of Khilaj Jagme? Yes. And Khilaj Jagme got then appointed as the, and even that question never came, I think the Supreme Court had never had a chance to really go into detail regarding the constitutionality of appointment of Chief Justice as the Prime Minister.

But you know, before that, number of times the Constitutional Assembly's, uh, mandate was, or the time, term was extended. And that was done to a political compromise and consensus. Most parties agreed to that. But whenever it was challenged to the court, the court would say, no, that is illegal. Number of times said this is the last extension that you can provide.

So, somehow you can assume that the political parties were not sure on the consensus they had arrived, but they just took the, took that as a, uh, based on the political experience, they, uh, political, political components, they came to [00:40:00] the conclusion, but then allowed the court to then intervene and correct the.

Consensus that 

Saumitra: these are interesting points. Someone then, um, you briefly mentioned this in the question before about reforms. So you mentioned expanding the scope for the judicial committee. This is Council Judicial Council. What other reforms are being discussed on the judiciary side, especially for the reforms in the Supreme Court?

And where are these reforms at the moment? I'm also interested to hear why are reforms so difficult in the 

Semanta: judiciary?

Let's start with whether reforms, is it the time that we need reform or not in the constitution? I think, because when you talk about reforming the judiciary. then the constitution will need some amendment at the same time, because all the functions of the judiciary are kind of elaborate in the provisions of the constitution.

One reason why I think your question with the reform is getting difficult is whether the parties [00:41:00] are really ready to make changes to the constitution at this stage or not. It is a very young constitution. And if you try to amend one provision, I think there could be a need to amend some, some other provisions.

You know, it is the constitution was arrived, you know, there's a past after, you know, long drawn political process, which was painful. We are all aware of that. So reform in the judiciary. will take time because of that. I think if that, if it is a requirement that the constitution is to amend it, because, you know, you've been seeing that there is call from different side, that some of the provisions, including even call for federalism to be revisited.

So if, if one provision gets touched, then there could be a situation that, you know, other provisions will need to be also be modified or amended. That's one. Now, without touching the constitution or without, you know, For meddling with the constitution, can we conduct few reforms in the judiciary or not?

And that's definitely the case we can. Um, and I think there are talks about at least three things that needs to be done in the judiciary, especially in the bar, that [00:42:00] needs to be amended. Uh, one is the composition of the judicial council. Uh, the composition of judicial council right now is slightly executive heavy, uh, compared to judiciary heavy because there are only two judges and both of them are from the Supreme Court.

And then the remaining are, you know, one is law minister. One person is an, is an appointee of the prime minister and one person is kind of a appointee of the bar. So if you look at the composition, it is not a very, uh, And, and the argument is that, you know, if the appointing body is not judicially heavy, then that is against the principle of independence of judiciary.

So there's one call to really change the composition. Second, again, debatable, uh, I don't know if I fall under any side of that is whether there is a need for the judges to be appointed to the Supreme Court to undergo a parliamentary hearing, which is many ways. Perfunctory most of the time, you know, it's just formality sometimes, uh, and sometimes it is not, except for one case, I think who got, uh, [00:43:00] denied of his, uh, judgeship.

But I think there is also a call to, to remove that requirement of having a hearing for judges' appointment. And third, I think that's when recent call is, uh, whether the chief trustee is getting compromised or swed away by politicians because of him or her being in the Constitutional council.

Constituent council is a body that appoints, you know, all these members and chairs to different constitutional bodies and chief justice also is there. The reason why chief justice was made to be part of it is to make sure that he checks and balances, you know, both the opposition party and the ruling party from taking any decisions which is unfair or capricious.

In recent time, it is now visible that the Chief Justice is also trying to appoint people close to him or appoint his people in the Constitutional bodies because he is in the Constitutional Council or he or she is in the Constitutional Council. That happened with the last Supreme Court Chief Justice.

So if [00:44:00] that is the case, then there'll be a bargain that goes on, a negotiation that goes on within the Constitutional Council. And that could compromise the Chief Justice's role. In the constitution council, also in the judiciary. So there is also a call to examine or reexamine whether there's a need for the chief justice to be in that body or not.

So these three are the major ones that are being, that's being discussed. Other, other ones that I proposed, I, I, I, I, I, I won't say I proposed it. I think there's a lot of people who've been discussing that. Uh uh, the other one is definitely to have the judicial, judicial council's role slightly modified and expanded to see if we can measure the justice performance on uncertain established criteria.

And that's, I don't think that will need a constitutional amendment that could be done through the Judicial Council Act. And, um, and I think, uh, I think those are the major ones I think that's been discussed, uh, 

Saumitra: so far. Some of the, you mentioned, uh, this idea of, uh, not, not having parliamentary hearings for appointments.

Why do you say that? [00:45:00] I mean, parliamentary being, parliaments being the supreme body. for for decision making. Why wouldn't you want hearings to be made for new appointments? 

Semanta: I think it's not I want or not. I think it's just I presented that it's an idea that has been discussed in the fraternity legal fraternity.

It's not that I stand neither of the issue because sometime, you know, having a parliamentary hearing. Um, also benefits in many ways because, uh, the judges, uh, outlook for the judiciary and his, uh, concept for the judiciary and his plan for the judiciary could be then present, present to the parliament and then the parliamentary committee, and then the parliamentary committee could take a stance whether it wants to approve the appointment or not.

And the reason why, if you go back, back, back, uh, behind the rationale for having a parliamentary committee. You know, have a look at the appointment, is that, uh, as you said, how are judges made accountable? You know, judges can be made accountable, [00:46:00] uh, Those are not elected persons, right? Like the, like the, like, uh, the, uh, like the parliamentarians.

Parliaments are elected and there's an argument that the parliamentarians represent the people in the parliament. So as a representative of the people, uh, they could, they could indirectly have a say on the appointment. On behalf of the people of the judges, that's how, you know, the parliamentary committee hearing got introduced, but, uh, you know, the parliamentary hearing commit introduction also have had some impact on or could have some impact is the argument that, uh, the judicial independence might get compromised because to make sure the judge gets approved.

by the parliamentary committee, whoever is appointed, he or she then might want to negotiate certain aspects of his performance so that he gets an approval. And I think that's not, that's the reason why there's an argument that, you know, or a proposal that, uh, the parliamentary committee hearing is not needed.

Saumitra: Can you, can you elaborate on [00:47:00] that? What, what they could expect to be negotiated? Somebody who is, uh, in the line to be appointed. 

Semanta: Uh, yes. Uh, I think, I don't, I don't think there is any live example that I can really think of at this point in time. Something for us to understand. So with the parliamentary committee has, I think it's around 15 people or 16 people who is in that committee, um, has more representative from a certain political party.

And it has more say on the appointment or the approval. I wouldn't say appointment. I think it's the confirmation of the judge who got appointed to the court. Then if the political party can start a bargain, I will not. Approve you unless you do something or unless you align with sort of our thinking or ideology or decisions that we take as a political party in the court.

So there could be some bargain that can happen and that bargain could compromise or influence. Uh, the, the judges is, I think the argument that is why I think there's been some call for, to remove the parliamentary hearing process. 

Saumitra: [00:48:00] Yeah, very interesting. I mean, it looks like, uh, what the system that we have in place is like a double check system where.

The judicial council kind of nominates, and then you go to the parliamentary process, and then you kind of get a stamp of that approval. Um, I don't know. I'm as you're speaking. I was trying to wrap around this idea, and then I'm not clear myself because, um, it's very difficult to take away politics from appointment, especially when you have a judicial council that comprises of the executive and the person nominated by the executive and the bar.

And I think Personally, I'm not from the judicial fraternity, but the bar itself is highly political in nature. So you have more people in politics deciding who gets nominated. I won't make you answer that question, but moving on, uh, some of the, I think something that has really intrigued me is this ability of judiciary to enforce decisions, right?

Um, uh, time and again, they've been really, interesting decisions, [00:49:00] really groundbreaking decisions, supportive decisions in public interest that the judiciary is taken. But, um, I've observed that this decisions, um, take place and we kind of are sitting around thinking when they when they will be implemented.

So the onus is on the executive. Um, so this idea of judiciary being able to enforce decisions through the executive, is that a correct reading that, um, the Nepali judiciary in that sense has less of an ability to enforce decisions? Um, I'm thinking about cases such as, uh, you mentioned also, uh, allowing voting for oversee.

Nepali, uh, residents, um, that's been decided by the Supreme Court a long time ago, and then it's not been provisioned as of now. Um, what do you think about this ability of judiciary to enforce decisions and, um, why is it, why does the judiciary really kind of, uh, struggle to follow up on, on, uh, timely enforcement?[00:50:00] 

Semanta: Once the decisions come out from the court, whether it is against the executive or between the two parties, somehow the execution of the judgment then falls under the prerogative of the executive now. And it falls, goes on to fall that because judiciary does not really have the strength or even the power to really get the judgment executed, um, reinforced.

In some cases, Supreme court has for policy reasons and reasons where to meet the aspirations of the people, have taken certain decisions, which have required the executive to implement the decision. And a number of cases have been in those lines, you know, including the current decisions on allowing gay marriages, whether there's a law in place or not.

And even the election, uh, whether the, you know, Nepali people who are residing out of Nepal can vote or not, you know, [00:51:00] judiciary is, uh, idea of giving that decision is to try policy reform or drive or help the executive to take certain policy reforms. Take an example of, uh. allowing voters outside Nepal to vote.

The infrastructure for that, the judiciary can't put in place. That is infrastructure that only the executive can put in place. Whether executive has the strength or not, or resources or not, to put that in place or not, is a question now, because election also means fair elections. And whether allowing people to vote outside of Nepal can result in a fair outcome or not.

And if there's, that's not a fair outcome, then what will happen with the elections? So, you know, it is more of judiciary trying to suggest in some of these things that executive we need to do and the executive then needs to then, you know, that is something that I need to do. And so try to [00:52:00] implement that.

Uh, but then there are resource constraints that really sometime makes it very difficult for the executive to implement those decisions. 

Saumitra: Uh, Samantha, this has been a great conversation and before we end, I want to talk about something really tangential. today's topic. Nepal's international agreements.

You've been part of many of these agreements. Nepal has entered into agreements with MCC. There's a MOU on BRI. These are some recent agreements, but these are not the only agreements. There have been other agreements that Nepal has been part of. These agreements, especially The bilateral ones have been heavily criticized and remain controversial in Nepal as a practicing lawyer.

Do you think such politicization of Nepal's international agreements tarnish its reputation, especially when Nepal is now looking to mobilize more public and private foreign investments? What is the global outlook on Nepal's current performance and practice in international [00:53:00] agreements and honoring these agreements?

How much impact does such politicization have on Nepal's future prospects to draw investments from outside?

Semanta: Interesting question and very difficult to answer at the same time. I'll start by saying that I've been very fortunate to be involved in some of these very important bilateral agreements that Nepal has signed with large foreign corporations and with other countries. These bilateral agreements, you know, are only legal sometimes.

They also carry some political and diplomatic features. And if they carry certain political and diplomatic features, you know, avoiding the agreement to enter into political sphere will be very challenging. You can't really avoid that. A series of arguments, starting with Sugoli treaty to current, you know, BRI or MCC, I think there's been the same case in between Sugoli and MCC, I think, or BRI, uh, you know, we had the bilateral investment treaty [00:54:00] with India, which got controversial, uh, when Prabhupada Mhatre went to India and signed that treaty, PIPA, again, that got very controversial.

Charged with controversies. There are other cases, you know, especially hydro agreements, or not say hydro, I'd say water resources agreement from Ali Treaty to Koshi to conduct all, all agreements. Ha have been, um, have, have had their own share of, you know, political controversies. I think there are multiple reasons why this happens.

Uh, one is, um, some of the time the negotiation that undergoes behind the. agreement is not very transparent and the government just signs it, then the political parties or the populace will think that no, there's not transfer. I was not aware of it, what was negotiated and the government did a good job in, in, in making sure the interest of Nepal was protected.

So that's why, you know, it gets a little charged up. Sometime it happens that some of these arguments are really [00:55:00] complicated and complex in nature with hardcore legal jargons. which a general populace will have difficulties in understanding. And then those are, those clauses will be misinterpreted to make some political gains.

And that's why, you know, it gets controversial. To answer your question, whether Nepal has respected the international agreements that it has signed or not, I would say that it does. The performance of Nepal has been acceptable so far, especially when disputes have been filed against Nepal. Nepal has tried to defend those.

And abide with the provisions of the agreement in doing that. Even the recent NCEL case, I think, initially Nepal did not want to go to the exit when Exeada filed the case against Nepal under the bilateral investment treaty between UK and Nepal. But ultimately Nepal decided to go and defended itself well and won the case also in many ways saying that, you know, the claims that NCEL and Exeada were taken was not the breach of the bilateral investment [00:56:00] treaty between UK and Nepal.

And there are the multiple cases that Nepal has faced, uh, you know, in other jurisdictions, you know, these are not bilateral. Those are more contractual disputes. I think, uh, more contractual in the sense more of construction disputes and Nepal has, uh, you know, defended that very well. We could definitely do better.

I think, uh, in many ways, when before or signing of any international agreement that is needed. Because international agreement have, especially if it's a treaty, has the implication of, you know, modifying your domestic law. And when there is a, you know, domestic law that gets passed in the parliament, there is a huge debate that usually happens.

But if you sign an international agreement, the debate that happens before is not happening. It only happens after the agreement gets signed. So I think the government needs to be more transparent whenever it's negotiating a bilateral agreement and try to take other, like any other laws that. Uh, the parliament passes, the governments will try to take more of the stakeholders views and, and, and, and feedback, [00:57:00] uh, before signing bilateral arguments with regard to mobilizing investment, um, I think more than the bilateral agreement, there are other factors that really come into play in attracting, uh, investment now in Nepal.

I think, uh, uh, You know, it is, it is a do with other factors, uh, you know, whether Nepal has competition, competitive edge in certain area or not. And all those factors come into play in attracting investment. I think I would certainly say that Nepal is more than willing to, you know, sign, uh, a perfect, I would say in the same perfect is financiable, kind of a bankable agreements with the international investors so that their investment in Nepal is protected.

So there is a more of a conducive. legal framework that is in place, bilateral legal framework in place for the investors to come and invest in Nepal. But only that is not enough. I think there are other things that are required. And this is where Nepal is ready, probably needs to improve and do better.

Saumitra: Excellent. Just before we end the conversation, someone does something that I've been holding off and this is, this may be a curve ball for you. [00:58:00] Um, so, uh, in, in the recent past, there's been strong criticism against federalism. Uh, I wouldn't say that we should stand against or for federalism, but something I'm thinking, I'm thinking out loud here.

Um, imagine there might be a case in the Supreme Court. I don't know if there is, but somebody registering a case in the Supreme Court saying that we don't need. federalism or we don't need provinces. How might the Supreme Court act on this, whether this is a legal or a political question? 

Semanta: Um, I think that, uh, although it's very, uh, sound fighting to make before the court, uh, it'll be pretty easy for the court to decide on this because court is not unQueensland.

Uh, court can't amend the constitution, court can only interpret the constitution and changing federalism and saying that federalism is not required will be amending the constitution. So it'll be a very much the predicate of the parliament here and it'll be a political And the question that quote, quote, I would assume will not intervene [00:59:00] because that will tantamount to, you know, amending the constitution.

Saumitra: Um, just before we end Samantha, is there anything you want to add from your side? 

Semanta: From my side, I think, uh, for today's conversation, I think it was, uh, for me and, I got to, you know, relook into some of my legal understanding. I think they really questioned some of my legal understanding at also at the same time.

And I would, uh, I think suggest that PEI also looks into other judicial reforms aspect because judicial reform has impact on policy reform and certain tasks that I think PEI can undertake, I think is my suggestion to PEI and to the listeners. I think, uh, thanks for the patience and hopefully, uh, I'll get some feedback.

Saumitra: Thank you so much. Thank you for coming in today and making time to do this 

Semanta: podcast. I really enjoyed totally. Thank you very much.