Santosh Giri, January 29, 2009
In my personal opinion, I think ‘they’ are trying to revive their people’s court under their federal structure as the “mobile courts”. Instead of reviving their people’s court, judiciary and judicial council should plan and implement a better option of superior court under the district courts. Nonetheless, Illegitimate Kangaroo Courts must come to cease.
In the US they have a Superior Court which performs like kangaroo courts. This is the court of first instance here. The vast majority of cases in the California courts begin in one of the 58 superior, or trial, courts-which reside in each of the state’s 58 counties in California. With facilities in more than 450 locations, these courts hear both civil and criminal cases, as well as family, probate, and juvenile cases. They normally hear petty cases. Issues less that $7500 are mediated through small claims mediation unit. ——- If this modal is implemented in Nepal, the superior courts should be opened in every municipalities having jurisdiction over the villages, towns and the municipality. There are 58 municipalities in Nepal and they can be taken as superior courts.
The existing District court can be court of second instance as an appeal on superior court and as a first instance court in cases claiming more than a minimum set financial standard such as $7500 lets say in Nepal for any issues above Rs.500,000.
The appellate court should be the court of last instance and the court of second and last appeal. The decision of appellate court should be final. Competent lawyers must be chosen to fulfill the vacant posts in the judiciary at this level.
The role of Supreme Court should be more into law making and delivering precedents, outdating laws, revising precedents and reviewing the cases. Supreme Court should be taking only those cases approved for a final appeal on the decision of the appellate court by a division bench of three justices (considering the voting ratio). Only Rare appeal cases that have constitutional issues, misinterpretation of laws, precedent flaws, amicus curie, judicial review, and where the court needs to address and introduce new laws through interpretation should be under the jurisdiction of the apex court. The apex court will thus maintain a high level of censorship, integrity and authority in terms of the balance of the three branches of the governance as well. The apex court should slowly refrain from being involved in the day to day decision making on small petty civil suits to previously decided criminal verdicts from district and appellate. The appointment of temporary and permanent judges should be made through promotion of existing judges and through allocation of adequate number of seats to the Bar.
The tenure of the justice also comes into play if we consider the above aspect. The justices of the Supreme Court should hold the offices for life based on their seniority and experience. The current Supreme Court justices should continue holding the offices until one resigns or the office is vacated under the laws. The check and balance of power through legislative will not let the judiciary be out of reach. Although the raw and inexperienced legislature did play a part through parliamentary Special Hearing Committee, it has nonetheless established the fact that there will be scrutiny from the legislative on judiciary in the years to come.
Superior Court: For the purposes of eligible human resources for the superior courts, if they are to be established in 58 municipalities, judiciary should consider opening vacancy for Associate Judges. There could be hiring of 5-7 associate judges in every superior court, which creates a vacancy of almost 400 associate judges. 50 years back when the judiciary was established we did not have enough human resources. But now we have two good law schools with production of good number of competitive scholars. We have adequate number of educated law graduates with LLM, SJD and specialization in specific laws. These can serve as a associate judges for special benches such as commercial law, family law, human rights, employment, labor, tax, small claims, juvenile, women’s rights, environment, compensation, gay & lesbian rights, minority and deprived rights etc. Experienced associate judges could be promoted to a district court and later to the appellate. They can also serve as Judges in special courts such as administrative court, tax court, labor court, juvenile court, etc. The decentralization of lower level of judiciary will be more reachable. The superior courts decision generated through mediation and arbitration can serve as binding unless one party chooses to appeal to the district.
The case loads in all the courts will drastically go down with implementation of this system and decisions will be quicker.
There is a need of revision of rules of professional responsibility of the lawyers. The rules of professional conduct here in the US are extremely rigid and harsh allowing no lawyer to initiate corruption whereas; in Nepal there is no rule of discipline virtually. The 10 Sections of Moral Rules for Lawyers are outdated. Action against defaulting lawyers should be taken on a tri-semester basis for debarring, suspending or warning the lawyers. Any decision of conduct on lawyers should be made public monthly on Nepal bar and Supreme Court website and publications. If bar wants bench to perform effectively, bench must scrutinize bar strictly. In 5 years of practice as an advocate and 2 years as a pleader, I never saw one single publication where the decision to take action on lawyers were published. Public was never made aware of the lawyers images who were punished or were under interrogation.
Another area of reform should be CLASS ACTION LAW SUITS. The corporate sector in Nepal has always been untouchable for the acts and deeds that have done in mass. Godavari marbles established Right to Life as fundamental rights but want the corporate giant made to compensate to the victims? NO. Class action law suits process allows victims of similar class who are against one corporate, to file one Class Action law Suit for compensatory damages. The class action law suit filers have to agree in writing to accept the verdict in the same amount.
I wanted to do a class action law suit against Janakpur Cigarette and Surya Tobacco forcing them to compensate the victim families in Janakpur and Simara Municipality who have been forced to live their life under inhuman respiratory conditions due to the emission of tobacco particles in the air. My assumption is that the patients of lungs cancer, bronchitis, asthma, skin allergies in these areas are directly correlated to the polluted emission from these factories. The class action law suit would demand that the factories be either resettled in a government specified industrial zone outside the residential zone or be shut down. The law suit could also demand that the employees be guaranteed life insurance of a fair market value and scientific and adequate physical protection procedures be adopted for the employees inside the factory areas through proper protective eye wares, protective clothes. This is my dream case and I will pursue it definitely in future, when there’s a provision for class action.
Other untouched corporate giants are:
1. Royal Drugs which sells expired medicine and fail to recall the expired medicines from the market
2. Hospitals with malpractice cases
3. Airlines with negligent history