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Judge Surya Dhungel of the Supreme Court of Nepal and Kathmandu University speaking at the 1st International Expert Meeting 2019. Photo by Humas MK/Ifa.

TANGERANG, Public Relations of the Constitutional Court—Nepal is a small, plural country flanked by two large countries, India and China, so that this country tends to be cautious to ensure that the judiciary be a strong one. The current Constitution of Nepal is the 7^th, completed in 2015. After the civil war, Nepal made the Constitution as part of the process to peace. This was conveyed by Surya Dhungel from the Supreme Court of Nepal, who is also a professor of Kathmandu University, in the 1st International Expert Meeting 2019 under the theme "The Role of Judicial Institutions to Promote Social Justice and Protect Economic and Social Rights" on Saturday (21/9/2019) in Serpong, Tangerang.

Dhungel further explained that the reason his country became a federal state was in order to be able to build power and hand over the greatest authority of administration to the lower order. Therefore, everyone would play a role in the state because they were empowered to develop the country. In terms of implementation of law and justice, he added, Nepal included 17 human rights provisions from international human rights provisions in its latest constitution, including by expanding economic, social, and cultural rights. 

Regarding judicial authority in Nepal, Dhungel said that the Constitutional Court was needed in Nepal because the existing constitution in Nepal is a written constitution and many articles were adopted from the constitutions of other countries, and that the state follows the parliamentary system. The public and political parties have been encouraging the formation of the Constitutional Court. However, since the introduction of the democracy in Nepal, the judiciary has become an independent institution that has not been touched by the executive power.

"There is the suspicion that later the Constitutional Court established in this country would be a French model, where judges can be nominated from the executive. So, in no term that any political parties shall influence the formation of the judiciary or benefit from it," Dhungel explained before the participants in the discussion, including Indonesian constitutional justices, judges and former judges from the judiciary of friendly countries such as India and Australia.

To quell the wish of these political parties, the Nepalese judiciary established a Constitutional Assembly that is authorized to examine the constitutionality of legislation made by the legislature. In addition, this assembly is tasked with resolving disputes between federal states.

The second innovation in the Nepalese judiciary is the Judicial Committees headed by deputy mayors. Most of the deputy mayors are women, because a provision requires that when a man is in leadership, the deputy must be a woman. Thus, the opportunity for women to occupy government positions is quite great. In fact, Dhungel added, in the parliament in Nepal, 33% of its members must be women. "All of these provisions have been set quite firmly in our Constitution and we are a country that is quite pro-gender. However, unfortunately there are only a few female Supreme Court judges in Nepal," Dhungel explained.

Challenges

Dhungel also explained that Nepal renewed its constitution upon the demand of the people who felt the need to reformulate their constitutional rights that had been violated. Any violation of constitutional rights would lead the Constitutional Assembly to formulate the rights. However, Dhungel explained, at the moment the challenge of the judiciary is its vulnerability to the politicization of the appointment of judges. In the early days, the judges for Nepal\\'s judiciary had been selected by an independent board. However, in practice, a list of prospective judges were submitted to the president and reviewed by the parliament. As a result, in the parliamentary session there was a bargain. Therefore, political parties in the judiciary will jeopardize the independence of the judiciary in the future. "Politicians feel they are in control of the country, so we must remind them of their attitude. If we depend on them, we may lose the spirit of the Constitution," Dhungel said.

In the event taking place on Friday to Saturday (20–21/9/2019), also present as speakers are Former Chief Justice of the Constitutional Court 2013–2015 Hamdan Zoelva and speakers from other countries, including Former Chief Justice of the Australian High Court Robert French, University of Johannesburg professor of South Africa Hennie Strydom, Justice of the Supreme Court of India Indu Maholtra, and Former Justice of Bosnia-Herzegovina Constitutional Court Joseph Marko. (Sri Pujianti/LA)

Translated by: Yuniar Widiastuti

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