Tek Narayan Kunwar
1. Introduction
Judicial independence is the most cherished value of the constitutional government. The judiciary undertakes the mission of imparting fair and impartial justice based on the constitution and recognized principles of justice for which it needs to be independent, impartial and accessible. The paper attempts to define and locate valid standards[1] of judicial independence, looks into the concept of fair trial rights and discusses constitutional, legal and judicial practices both in Chinese and Nepalese context. Moreover, it tests the two country’s (People’s Republic of China & Nepal) practices with recognized international standards. It also advances conclusion for the implementation of judicial independence and fair trial rights.
“Judicial independence is widely considered to be a foundation for the rule of law… [M]ost agree that a truly independent judiciary has three characteristics. First, it is impartial. Judicial decisions are not influenced by a judge’s personal interest in the outcome of the case…Second, judicial decisions, once rendered, are respected…The third characteristic of judicial independence is that the judiciary is free from interference. Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision.”[2]
On the other hand, the right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. It is a most prominent right which includes the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”[3] Fair Trial Right protects the inherent rights of a person before, during, and after the trial. The independent court is only a guarantor and safeguards of such individual rights.
2. Global Standards of Judicial Independence
There is no actual definition as to the exact meaning of an independent judiciary. Various guidelines have been set forth internationally in documents such as the UN Basic Principles on the Independence of the Judiciary. While these documents are not binding on member states, they evidence high-level support for the principle of judicial independence. In addition, international and regional human rights courts and commissions have interpreted the provisions of human rights treaties and shed some light on the minimum standards and components of the right to a fair trial and judicial independence. The following are the key international guidelines and principles, which promote, define and interpret the principle of judicial independence.
2.1. The UN Basic Principles on the Independence of the Judiciary [UNBP] (1985)-[4]
The UNBP calls on member States to guarantee judicial independence domestically through constitutional or legal provisions. Further, it highlights the standards for the independence of the judiciary including separation of powers and technical competence.[5] It guarantees the right to freedom of expression, belief and association of judicial member.[6] Moreover the basic principle sets out the criteria of judicial qualifications, selection, and training.[7] Finally, it puts forward the terms of service, security of tenure of judges[8] and fixes the conditions of discipline, suspension and removal.[9]
According to the UNBP (Article 1-7),[10] the independence of the judiciary should be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, undue influences, inducements, pressures, threats or interferences. The judiciary shall have jurisdiction over all issues of a judicial nature and have exclusive authority to decide within its competence as defined by law.
There shall not be any inappropriate or unwarranted interference with the judicial process. Everyone shall have the right to be tried by ordinary courts or tribunals. Any other tribunals shall not be created to displace law courts. The principle of the independence of the judiciary requires that the judicial proceedings should be conducted fairly and the rights of the parties be respected. It is the duty of each Member State to provide adequate resources to enable the judiciary to function properly.
2.2. Human Rights Instruments:-
These instrumentsprovide greater scope and importance of judicial independence. The Universal Declaration of Human Rights (UDHR) pronounces “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”[11] Again, the International Covenant on Civil and Political Rights (ICCPR) provides ”… in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..”[12] The Vienna Declaration and Programme for Action in 1993 declares “Every state should provide an effective framework of remedies to redress human rights grievances or violations. The administration of justice… especially, an independent judiciary and legal profession …are essential to the processes of democracy and sustainable development.”[13] The Special Rapporteur concerned that the situation of the independence of the judiciary, which is the bedrock of the rule of law, remains delicate in many parts of the world.[14] Moreover, General comment No. 32 and 13 of the ICCPR have enlightened this norm. Over again, the CEDAW (Article-8), CAT (Article- 14), CRC (opt. protocol) and CMW (Article-15, 16 & 18) have also strongly recognized this principle. Equally, the European, Inter American and African system have acknowledged these values.
2.3. Montreal Universal Declaration on the Independence of Justice (1983)-
The first World Conference on the Independence of Justice, recognized that there was no single proper method of judicial selection, provided that it safeguarded against judicial appointments for improper motives;[15] and that participation in judicial appointments by the Executive or Legislature was consistent with judicial independence, so long as appointments were made in consultation with members of the judiciary and the legal profession, or by a body in which members of the judiciary and the legal profession participated. The Declaration affirmed that candidates for judicial office should be individuals of integrity and ability, called for equality of access to judicial office[16] and stated that “the process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects”.[17]
2.4. Universal Charter of the Judge (1999)-
The Universal Charter of the Judge (1999) has defined the term“Independence” as follows: “Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them. The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.”[18]
It further emphasized “Judicial independence must be ensured by law creating and protecting judicial office that is genuinely and effectively independent from other state powers. The judge, as holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure, and independently from other judges and the administration of the judiciary.”[19]
2. 5. The Bangalore Principles-[20]
The Bangalore Principles of Judicial Conduct are intended to establish standards for ethical conduct of judges. These principles pre-suppose that judges are independent and impartial and established to maintain judicial standards. There are six paramount values identified in these principles which cover the global standard of judicial conducts. They are:
Value 1 – Independence: Judicial Independence is pre-requisite to the rule of law and a fundamental guarantee of a fair trial.
Value 2 – Impartiality: It is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
Value 3 – Integrity: Integrity is essential to the proper discharge of the judicial office.
Value 4 – Propriety: Propriety, and the appearance of propriety, are essential to the performance of all the activities of a judge.
Value 5 – Equality: Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
Value 6 – Competence and Diligence
2.6. Beijing Principles (1995)-
In Asia, the “Beijing Principles” (1995)[21] were adopted at the 6th Conference of Chief Justices of Asia and the Pacific Region. According to this the independence of the judiciary requires that:-
(a) The Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and
(b) The Judiciary has jurisdiction, directly or by way of review, over all issues of a justifiable nature.”
3. Basic Fair Trial Criteria
Fair trial is an important right relating to personal liberty. A trial is said to be fair when all the actors of the criminal justice system act in a fair manner by abiding to the process laid down by the international human rights law. Under the criminal justice system, criminal procedure is divided into three interludes viz. rights before trial, rights during trial, and rights after trial.
3.1. Rights Before Trial
The trial proceedings begin with the production of the suspect and the charge sheet. For a fair result, there must be due process rights before trial. “No one should be subjected to arbitrary arrest or detention”.[22] There should be right to know the reason for arrest. Anyone should be informed, at the time of arrest of the reason for his/her arrest.[23] The right to legal counsel is another important pretrial right.[24] Everyone has right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention.[25] The prohibition of torture and the right to humane conditions during pretrial detention are also important pretrial rights.[26] So, the defendants must be free from coerced confessions.
The Human Rights Committee has found that incommunicado detention may violate Article 7 of the ICCPR which prohibits torture, inhuman, cruel and degrading treatment.[27] Where confessions have been obtained during incommunicado detention or are otherwise coerced, they shall not be admissible in evidence at trial. [28] Common Article 3 of the 1949’ Geneva Conventionis important too.Although fair trial and due process can be derogated from in times of emergency, but still subject to Common Article 3 and Additional Protocol I of 1977. The common Article 3 sets the “minimum yardstick”. It invokes persons in all circumstances should be treated humanly and without any adverse distinction.
3.2. Rights During Trial
“Article 14 of the ICCPR is undoubtedly the most pertinent to this review. Paragraphs 2 to 7 under this provision contain a catalogue of “minimum [procedural] guarantees” belonging to an individual in the determination of any criminal charge against him/her.”[29] The following are the key hearing rights during the trial:-[30]
All persons have right to equal access to and equality before, the courts. Right to fair and public hearing by a competent, independent and impartial tribunal should be established by law.[31] Right to presumption of innocence until proved guilty[32] and the right to prompt notice of the nature and cause of criminal charges[33] are safeguarded by international and regional human rights law. Likewise, the right to adequate time and facilities for the preparation of a defense[34], the right to a trial without undue delay[35] and right to defend oneself in person or through legal counsel[36] have protected during the trial. Additionally, the right to examine witnesses,[37] right to an interpreter,[38] the prohibition on self incrimination,[39] the prevention on retroactive application of criminal laws[40] and the exclusion on double jeopardy[41] are the core standards of fair trial rights.
3.3. Rights After Trial
Finally, the right to a fair trial must not end once the verdict is rendered, but continue after trial. Everyone convicted of a crime is entitled to appeal the conviction to a higher court according to law.[42] Also, no one can be tried or punished for the same offense more than once.[43] The right to compensation for miscarriage of justice is established.[44] States are obliged to grant compensation pursuant to a mechanism provided for by law.[45] The right to appeal is aimed at ensuring at least two levels of judicial scrutiny of a case. The review undertaken by such tribunals must be genuine. This, among other things, means that appeal proceedings confined only to a scrutiny of issues of law raised by a first instance judgment might not always meet that criterion.[46]
4. Judicial Independence in China
4.1. The structure, organization, jurisdiction of courts:
Institutional and individual judicial independence are affected by the hierarchical structure, inter-court relations, and whether specialized courts or tribunals are established with limited, specialized jurisdiction.[47] In China, the people’s courts are the judicial organs of the state.[48] The People’s Republic of China (PRC) establishes the Supreme People’s Court (SPC) and the local people’s courts at different levels. The organization of people’s courts is prescribed by law.[49] The SPC is the highest judicial organ. It has power to supervise the administration of justice by the local people’s courts at different levels.[50]
Constitutionally, the people’s courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.[51] But in practice, the Government and the CCP, at both the central and local levels, frequently interfered in the judicial process and directed verdict in many cases.[52]
Article 5 of the Chinese Constitution states that “no organization or individual may enjoy the privilege of being above the Constitution and the law.”.. But, Chief Justice Xiao Yang observes, “Courts have often been taken as branches of the government and judges viewed as civil servants who have to follow orders from superiors, which prevents them from exercising mandated legal duties like other members of the judiciary.” [53]
There is a complex supervision mechanism over judiciary in China. In one hand, the Supreme People’s Court itself has a supervisory power in the administration of justice.[54] On the other hand, there is unusual mechanism established to supervise the court in different levels by Supreme People’s Procuratorate[55] and National People’s Congress Standing Committee (NPCSC). The Procuratorates are the state organs for legal supervision.[56]
Under Articles 62 and 67 of the Chinese Constitution, the National People’s Congress (“NPC”) and NPC Standing Committee, not the courts, are responsible for interpreting the law.[57] There is no other mechanism of judicial review for legislative and administrative actions pursuant to such interpretation. Under the provision requiring independent and impartial tribunals, the courts are answerable to the Communist Party, and thus lack legitimacy as fully autonomous entities.[58] In addition, China’s legal infrastructure is greatly lacking, adding to the weakness of the judiciary.[59] The Supreme People’s Court is accountable to the legislature and ultimately to the ruling party. Constitutionally, it is responsible to the NPC and its Standing Committee.[60] Local people’s courts at different levels are responsible to the organs of state power which created them.[61]
Although the Chinese constitution emphasizes that courts shall, in accordance with the law, independently exercise judicial power and are not subject to interference by administrative organs, public organizations or individuals.[62] In reality, the judiciary is subject to policy guidance from both the government and the Communist Party.
4.2. Qualifications, Competency, Trainings and Role of Judges:
An essential element of judicial independence is a high level of professionalism and integrity among the judiciary. In a report on the judicial system in China, says that “incompetent” judges were making the system unfair. The report stated that most of the more than 200,000 judges in China have no legal training and have traditionally been appointed for political reasons.”[63] Although the SPC was instrumental throughout the 1990s in improving the quality of existing judges and in enhancing the entry standards for new judges. Still, local CCP and government officials can always find judicial posts for their relatives and friends.[64] This scenario undermines the necessity of competency of judges.
Judges at lower courts are not required to have any formal legal training in China. Most judges have a Public Security Bureau or Army background which does not give credence to judicial impartiality, especially in politically sensitive cases. The judiciary is expected to actively take part in Government campaigns with the result that the degree of punishment received often depends upon whether or not a campaign is in progress. For instance, first groups of judges from government bureaucracies, second groups from long tradition of ex-soldiers and third from law universities graduates is working[65] as an unusual combination of Chinese judicial human resource.
Again, most court presidents are political appointees with little or no legal education. And most are selected from outside the judiciary.[66] But, judges are better qualified than in the past,….growing numbers of well-educated judges are developing professional identities, and popular attention to both the problems and the potential roles of the courts appears higher than ever before.[67] Most significantly, the education levels of judges have improved dramatically. Media reports in mid 2005 stated that for the first time more than 50 percent of Chinese judges had university degree.[68] Now, an extensive programme of training of judges has been instituted. The National Judicial College has established in Beijing. It conducts residential training of senior judges.
Judges Law of the People’s Republic of China is a new innovation in the course of judicial reform in China. The aim of this law is to ensure the People’s Courts independently, to exercise judicial authority according to law and that judges perform their functions and duties according to law, to enhance the quality of judges, and to realize the scientific administration of judges.[69]
4.3. Rights, Duties and Code of Judicial Ethics:
In China judges are considered the judicial personnel who exercise the judicial authority of the State according to law.[70] Judges have to keep some extra duties in performing their job. They have to safeguard the State interests as well as public interests,[71] to keep State secrets and the secrets of judicial work[72] and to accept legal supervision and supervision by the masses.[73]
It represents a systematic effort to improve the quality of judicial decision-making and enhances judicial independence. In China, the Judges code 2000 has asserted a number of fundamental principles of judicial conduct. It includes no extraneous interference, impartiality, equal treatment to parties in word and deed, judgment with reasons, no commentary on other cases, including appeals, conduct of cases efficiently and within time limits, avoids unnecessary delay, a ban on inducements, gifts, conflicts, observing proper decorum, continuing education and restriction on extra-judicial and post retirement activities.
4.4. Judicial selection, appointment, and Removal:
It governs the appointment of judges, and may serve as a primary condition for ensuring judicial independence and accountability. Article 11 of the Judges Law says “judges shall be appointed or removed from the post in accordance with the limit of authority for, and procedures of, appointment or removal as prescribed by the Constitution and laws.” The President of the Supreme People’s Court is to be elected or removed by the National People’s Congress. The vice-presidents, members of the judicial committee, chief judges and associate chief judges of divisions and judges shall be appointed or removed by the Standing Committee of the National People’s Congress upon the recommendation of the President of the Supreme People’s Court. [74] The local People’s Courts and the intermediate People’s Courts at various levels have the same procedure for appointment and removal at the corresponding levels.
It is much fascinating that the NPC exercises the functions and powers to appoint and remove the Vice-Presidents and judges of the Supreme People’s Court and members of its Judicial Committee.[75] Judges have right to be not removed or demoted from the post or dismissed, and to be not given a sanction, without statutory basis and without going through statutory procedures.[76] But, there is no independent mechanism i.e. judicial council established to appoint and remove the judges in China. The present system could be used arbitrarily if the authorities’ vested interests were not met by the judiciary. The international standard does not allow such unfair provisions at any rate in a rule of law regime.
4.5. Judicial Remuneration and Resources for Court Administration:
Constitutionally, salary system and scales for judges shall, in light of the characteristics of judicial work, be formulated by the State.[77] Judges can enjoy judicial allowances, regional allowances and other allowances and insurance and welfare benefits as prescribed by the State.[78]
Under the article 8 of the judge’s law, judges can enjoy the rights which strengthen the judicial independence. They have rights to have the power and working conditions which are essential to the performance of functions and duties of judges. To brook no interference from administrative organs, public organizations or individuals in trying cases according to law; to be remunerated for work and to enjoy insurance and welfare benefits; to enjoy the safety of the person, property and residence as ensured by law; to receive training; to lodge petitions or complaints; and to resign their posts are several positive options of enhancing judicial capacity to the judges.[79]
5. Right to a Fair Trial in China:
5.1. Constitutional Framework: According to the article 33 of the Chinese Constitution,all persons are equal before the law.[80] The Constitution provides that the rights and freedoms of the people and it may not infringe upon the interests of the state, of society and of the collective or upon the lawful freedoms and rights of other citizens.[81] The home of citizens of the PRC is inviolable. Unlawful search of, or intrusion into, a citizen’s home is prohibited.[82] The freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law.[83] Citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the law.[84]
All cases handled by the people’s courts, except for those involving special circumstances as specified by law, shall be heard in public. The accused has the right of defense.[85] Citizens of all nationalities have the right to use the spoken and written languages of their own nationalities in court proceedings. The people’s courts and people’s procuratorates should provide translation for any party to the court proceedings who is not familiar with the spoken or written languages in common use in the locality.[86] For minority nationals hearings should be conducted in the language in common use in the locality; all documents should be written in languages used in the locality.[87]
5.2. Legal Framework: The Criminal Procedure Law, 1996 (CPL) has guaranteed some fair trial rights. One of the aims of the CPL is to ensure accurate and timely ascertainment of facts about crimes, correct application of law, punishment of criminals and protection of the innocent against being investigated for criminal responsibility.[88] It has drastically improved the criminal justice system in China by introducing some key rights and procedural safeguards for criminal defendants. But, in practice many of the rights introduced, has lacked real substance. The reforms were intended to introduce aspects of the adversarial system of justice to the historically inquisitorial system; however the safeguards introduced lacked the necessary guarantees to ensure compliance. The right to a fair trial is still far from a reality for China’s criminal defendants.
Defense and representation rights has safeguarded under the chapter IV of CPL.The suspects have right to defend by their chosen lawyer. Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law can not serve as defenders.[89] The People’s Court may also designate to provide legal aid if one can not appoint a lawyer to serve as a defender.[90]
Criminal law is both fundamental and political in China. Crime is seen not simply as a violation of criminal law but also as a political challenge to the role of the Chinese Communist Party (CCP) and to the socialist system.[91] The judiciary too is not supposed to be neutral in handling criminal matter.[92] In practice long pretrial detention and confession by using force turn up common. Police make it difficult and politicized. At this juncture, the court remains pitiable. Consequently, a serious lack of justice prevails in the PRC’s judicial system, its judiciary, lawyers and criminal procedure and also serious lack of observance of all or part of the international provisions relating to the right to a fair trial. As such, even when an individual is accorded a trial, the conviction and subsequent detention is of an arbitrary nature.
To extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means are strictly forbidden.[93] Arrests of criminal suspects or defendants are subject to approval by a People’s Procuratorate or decision by a People’s Court.[94] A public security organ shall interrogate a detainee within 24 hours after detention. If it is found that the person should not have been detained, he must be immediately released and issued a release certificate.[95] The persons arrested and their families have a right to reasons for arrest and the place of custody.[96] Besides the cases of State secrets or private affairs of individuals and minors, cases of first instance in a People’s Court shall be heard in public.[97] The right to appeal in writing or orally to the People’s Court at the next higher level has been guaranteed.[98]
Article 42 of the CPL provides that all facts that prove the true circumstances of a case shall be in evidence.[99] However, article 43 forbids the extortion of confessions by torture and collection of evidence by threat, enticement, deceit or other unlawful means.[100]
6. Judicial Independence in Nepal
6.1. Structural Independence: The 1990’s constitution was a foundation of establishing judicial independency in Nepal. The current Interim Constitution 2007 has carried out some basic features of its predecessor. However, it lacks some key aspects of judicial independence. Powers relating to justice have exercised by courts and other judicial institutions in accordance with the provisions of Interim Constitution 2007, the laws and the recognized principles of justice.[101] The Constitution has full commitment towards independent judiciary and rule of law.[102] No other courts, judicial institution or tribunal be constituted for the purpose of hearing a particular case.[103]
The Constitution provides three tiers of Court which include the Supreme Court of Nepal, the Court of Appeal and the District Courts. Supreme Court is the Apex Court. To establish an independent and competent system of justice viewing for the purpose of transforming the concept of the rule of law into a living reality is one of the basic objectives of the constitution.
The Supreme Court is a Court of Record. It may initiate proceedings and impose penalties in accordance with law for contempt of itself and of its subordinate courts or judicial institutions. Except on the matters which fall under the jurisdiction of the Constituent Assembly Court, the Supreme Court has the final power to interpret this Constitution and other prevailing laws.[104]
6.2. Appointment Procedure: The constitution has established a separate Constitutional Council[105] for the appointment of Chief Justice. The Prime Minister appoints the Chief Justice of the Supreme Court on the recommendation of the Constitutional Council.[106] Similarly, the Chief Justice has power to appoint other Judges of the Supreme Court on the recommendation of the Judicial Council.[107] Nonetheless, the composition of the Constitutional Council seems very political.[108] As the PM is the head of the executive, for the PM to appoint the Head of Judiciary represents a conflict of interest. But for now, the head of the State in Nepal is impliedly being suspended and at this vacuum it obviously has a technical difficulty in this regard.
An independent Judicial Council[109] is established under the chairmanship of Chief Justice to make recommendations and give advice in accordance with this Constitution concerning the appointment, transfer, disciplinary action against, and dismissal of Judges, and other matters relating to judicial administration. The Chief Justice appoints the Chief Judge and judges of the Appellate Courts and any Judges of the District Courts on the recommendation of this Council.[110] The Judicial Council is independent to exercises this power.[111] However, the composition of the Judicial Council is not beyond the criticism.[112] The lack of transparency in the appointment process of judges is said to have affected the public trust in the whole process.
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6.3. Judicial Remuneration and Resources for Court Administration:
Obviously, judicial remuneration must be adequate and competitive to ensure judicial independence. Similarly, there must be adequate resources for the operation of courts: for courthouses; caseload management; record keeping; and making judicial decisions public, available, and accountable. The annual budgetary outlay for the judiciary is less than 0.58% of the national budget. With such a meager budget, it is beyond imagination that the judiciary can meet its infrastructural, logistic and other expenses.[113]
The Chief Justice and Judges of the Supreme Court are entitled to pension after retirement. The remuneration, leave, allowances, pension and other conditions of service of Justices are regulated for in the law. This also applies to the all judges in any courts.[114] The remuneration, privileges and other conditions of service of the Justices of the Supreme Court and other courts, should not be altered to their disadvantage.[115] There is a separate statute to regulate the judges’ condition of services and facilities.[116]
Although, the Constitution specified that the remuneration, privileges and other conditions of service of judges shall not be altered to their disadvantage, it has, however, left all these things to be determined by law. That means Parliament has been given a free hand to determine such things.
6.4. Removal Procedure: The Chief Justice and other Judges of the Supreme Court hold offices until they attained the age of sixty five years.[117] They shall be impeached by the two-thirds majority of parliament on the ground that if they are unable to perform their duties for the reasons of incompetence, misbehavior, failure to discharge the duties of his/her office in good faith and physical or mental condition.[118]
The Judges of Appellate Court or District Court shall only be removed from their office in the circumstances if they removed by the Chief Justice in accordance with a decision of the Judicial Council for their removal for reasons of incompetence, misbehavior or failure to discharge the duties of office in good faith, incapable to discharge the duties due to physical or mental condition, or deviation to justice.[119]
The Judge of the Appellate Court and District Court who is facing charge pursuant to this clause shall be given a reasonable opportunity to defend himself/herself; and for this purpose, the Judicial Council may constitute a “Committee of Inquiry” for the purposes of recording the statement of the Judge, collecting evidence and submitting its findings thereof. The working procedure of the Committee shall be as regulated by law.[120]
6.5. Jurisdiction of Supreme Court: The jurisdiction of the Supreme Court is also visibly provided for in the Constitution which extends from original jurisdiction to appellate and extraordinary jurisdiction which includes the power of judicial review and issue appropriate writs including the writ of habeas corpus, mandamus, certiorari, prohibition and quo warranto. Article 107(2) of the Interim Constitution has awarded the Supreme Court vast extraordinary jurisdiction in order to reinforce the fundamental rights of citizens.[121]This provision entitles the Supreme Court to declare legislation void for being inconsistent with the provisions of the Constitution. The Supreme Court can make such declarations to be effective ab initio or from the date that the order was made.
6.6. Qualifications and Training: In the new political context, the judiciary was entrusted with the immense responsibility of protecting democracy, the rule of law, and fundamental freedoms. In order to shoulder those responsibilities, judges needed to keep abreast of changes in laws, philosophies, and society.[122] This awakening of judicial education in Nepal was actually part of a general initiative on judicial education originally launched in South Asia in the 1980s.[123]The National Judicial Academy (NJA) has established in Nepal in 2004. It aims at promoting an equitable, just and efficient justice system for Nepal through training, professional development, research and publication programmes that addresses the needs of judges.
7. The Fair Trial Rights in Nepal:
7.1 Constitutional Standards: Nepal does not have a separate system of courts for the hearing of civil and criminal cases. The same sitting judge presides over the same court; hear the both civil and criminal cases. The Constitution recognizes the District Court to be the court of first instance. Therefore, original jurisdiction for most judicial matters belongs to the District Courts, and as such, the District Courts possess jurisdiction over both civil and criminal matters.
Part 3, article 12 to 32 of the Interim Constitution has described all civil, political or economic, social and cultural rights of the people. Every person has the right to live with dignity, and no law can be made which provides for capital punishment.[124] These rights are the core of right to a fair trial. No person shall be deprived of his/her personal liberty saves in accordance with law.[125] All citizens are equal before the law. No person shall be denied the equal protection of the laws.[126]
Article 24 of this Constitution has elaborately guaranteed the right to a fair trial.[127] Under this article almost all established fair trial rights have been covered. No person who is arrested shall be detained in custody without being informed of the ground for such arrest. The arrested person has the right to consult a legal practitioner of his/her choice. It can not be denied that right to be defended through his/her legal practitioner. The arrested person should be produced before a judicial authority within twenty-four hours. No one can be punished for an act which was not punishable by law when the act was committed, nor can any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offence.
Right to be assumed innocent until proved guilty has also been safeguarded. Citizens are not subjected to be double jeopardized.[128] No person accused of any offence shall be compelled to be a witness against oneself. Every person has the right to be informed about the proceedings of the trail conducted against them. Every person is being entitled to a fair trial by a competent court or judicial authority. The indigent person has the right to free legal aid. Right against preventive detention is protected unless there is a sufficient ground of existence of an immediate threat to the sovereignty and integrity or law and order situation of Nepal. Any person held under preventive detention has, if their detention was contrary to the law or was in bad faith, have the right to be compensated in a manner as prescribed by law.
Right against torture is also safeguarded by the constitution.[129] There is no room for any physical or mental torture, nor have any possibility of cruel, inhuman or degrading treatment. Any such an action shall be punishable by law, and any person so treated shall be compensated in a manner as determined by law.[130]
7.2. Legal Set up: Nepal still has not introduced separate codified criminal law. The procedures before, during and after trial are combined with Constitution, National Code, State Cases Act and other laws. The State Cases Act, 1992 and article 24 of the Constitution are fundamental laws governing procedures on trial.
However, before the trial, the Section on Court Management of the National Code governs many aspects of general procedure which are related to investigation and prosecution, for instance, the procedures concerning search and seizure, issue of warrants and summonses for witnesses.[131]
During the trial,the charge sheet is filed by the prosecutor, the adjudication proceedings begin. The adjudication proceedings are divided into three stages viz. bail hearing, post bail hearing and final hearing.[132] At this stage Correctional Petition can be filed to the appellate court.[133] After trial execution of sentence and appeal against the trial judgment are two major aspects of the procedure after trial.[134]
8. Comparative Analysis
Courts and individual judges must be impartial in rendering their decisions. They should function, in a manner that ensures the equal application and protection of the rule of law. Judges must be free from undue interference from other branches of government as well as from its own superiors.
There is no single agreed upon model of judicial independence in the world. Similarly, despite numerous studies, there is no consensus even on a common definition of judicial independence.[135] One definitional problem is that judicial independence is a relative, not an absolute concept.[136]
Taking all of the above into account, China and Nepal have a few common and several different positions in regard of judicial independence and right to a fair trial. Political system of a state could be a determinant factor of judicial independency. Nepal is going through multy-party democracy although it has now become a station at a vulnerable juncture. On the other hand, China has mainly one party system. So, the constitutional set up of their judiciary is moderately different. At least both countries have been a party of core international conventions and are legally or morally bound to comply with the treaties. However, China has signed but not ratified ICCPR. The act of signing does not impose positive legal obligations on the state. Nevertheless, signature does indicate the state’s intention to take steps to be bound by the treaty at a later date.
Chinese judiciary is structurally subjected by the Supreme Peoples Congress and other factors whereas the Nepali judiciary has enjoyed more prerogatives. Appointment, transfer and removal procedure of Judges in all tiers of courts in Nepal are pretty independent in contrary to China. The Supreme Court of Nepal has unlimited extra ordinary jurisdiction to review the legislation and executive decisions. But, China’s SC is not having empowered with this supremacy. The Chinese judiciary neither has command of judicial review nor can it hear writ petitions, whilst these rights of judiciary are known as pillar of judicial independence.
In Nepal, rather than China the Constitution has empowered the Supreme Court to impart justice in accordance with the provisions of the Constitution, laws and “the recognized principles of justice”. This provision provides a wider scope to the judiciary. Further, the right to life, personal liberty and security are guaranteed under the constitutional scheme by its letters and spirit. The rights guaranteed under the Constitution are in conformity with international human rights instruments. However, some of the guarantees provided by such instruments have been left to translate in practice.
The Nepali judiciary is facing numerous challenges in recent days. Even during the dictatorial regimes the judiciary tried its best and “made significant headway towards upholding the rule of law in the light of its own experience and the aspiration of the people.” In papers Nepalese Constitution has incorporated international standards of judicial independence and fair trial rights superbly. On the other hand, Chinese Constitution does not look like so far broad on the matter of establishing human rights and judicial independence.
There are little common problems within the Chinese and Nepali judiciary. Chinese courts are handling more cases than at any time in the past.[137] In Nepal the existing civil caseload takes 72% of judicial time at all levels.[138] Nepali criminal justice system has suffered from long delays in holding trials. The Supreme Court reported that only 4,536 of the 17,006 pending cases were settled in the year 1999.[139] Both countries are facing litigation explosion in this respect. It is common in the developing countries that courts are not necessarily playing a greater role relatively to other institutions.
Judicial budget is not ample and it determines by the government. Lack of adequate trainings, case adjudication and enforcement problems, external pressures on judicial functions are other hindrances. Lower quality of court decisions, political intervention, corruption, media pressure and lack of transparency are also the negative indicators of judicial independence. More or less both countries are facing these challenges.
In China the supervisory weapon has grabbed the judiciary so badly and wounded judicial independence faultily. However, Nepali judiciary seems more independent in this regard.
So far as fair trial practice, long pretrial detention and use of force in obtaining confessions and legal procedure are swept aside in China[140] are common. Nepal is not exception of it. In some courts in China, rulings in criminal cases require the approval of the party leaders and it often rewarded with the promotion of judge.[141] Likewise in Nepal, it is widely suspected that undue political pressure is often put on judges to encourage them to deal either leniently or harshly with particular accused person.[142]
Corruption is a rival of judicial independence. Actually influence and bribery have become necessary components of criminal cases in China. Lawyers in particular have become instrumental in brokering deals between litigants and judges.[143] …the notion of ethics is foreign to Chinese judges; and malpractice and corruption are prevalent.[144] Nepalese courts too are often accused of corruption and inefficiency.
Appeal hearings are often delayed because of the over formalities of the courts proceedings. Another weakness is reflected in the fact that sentences orders are frequently amended by higher courts. Besides, most of the Nepali judges are reluctant to apply principles of international human rights laws because of unfamiliarity with it and also due to their conservative outlook. Question of sentences is a matter of discretion of a judge. There could be an ample possibility to abuse it by an unaccountable judge in each system.
One of the shortcomings of fair trial course in Nepal is scattered provisions of criminal law. Similarly, many criminal acts are not covered within the prevailing law. Ambiguities in law are other problems. Finally, Lack of legal knowledge of crime investigation authority, absence of resources and social, political and corrupted environment mislead the court to deliver proper justice. We can see the same face in Chinese system too.
9. Conclusion
Although declaration of independence of judiciary is not enough; rather has to make it operational. There are some provisions both in PR China and Nepal which obstruct the values and principles of independence of the judiciary and fair trial rights. In this regard pro-active judicial role is anticipated in both countries. Obviously, the rule of law, separation of power and judicial independence are three pillars of fair trial rights. In addition, Institutional corruption, poor working practices, loopholes in the law, lack of resources and the lack of statutory provisions allow to impede judicial independences. Ultimately, it weakens the court’s independent power and right to dignity of people.
In implementing global standards of judicial independence, availability of resources, positive political atmosphere and government’s due priority should approach to the frontline. Even so, the strong institutional formation and constitutional guarantees are the fundamental basis. To tackle the fundamental issues the priority should be for the state to develop a comprehensive judicial reform plan. At this point, the major contours of judicial reform should be determined by the prescriptions in international human rights standards.
Besides, the State must be sincere in its commitment to the rule of law. The executive and the legislative branch must forsake their traditional attitude and demonstrate their commitment in practice. Only the recognition of rights on paper is not sufficient to guarantee that they will be enjoyed in practice.[145]
[1] These standards are Guided by articles 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 14 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action (A/CONF.157/23), in particular Part I, paragraph 27, and Part II, paragraphs 88, 90 and 95, thereof.
[2] Excerpt from: The World Bank Group – Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can Be Measured, Why It Occurs. http://www1.worldbank.org/publicsector/legal/judicialindependence.htm 2001 (21st November 2007).
[3] Article 14 (1), International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.
[4] UN Basic Principles on the Independence of the Judiciary, 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, 08/26 09/06/1985, GA resolutions 40/32 of 11/29/1985 and 40/146 of 12/13/1985, UN GAOR, 40th Session, Supp. no.53, UN Doc. A/40/53 (1985)
[5] Id, Art. 1-7
[6] Id, Art 8-9
[7] Id, Art. 10
[8] Id, Art. 11-16
[9] Id, Art. 17-20
[10] All these principles are incorporated within article 1-7 of the UN Basic Principles of the Independence of the Judiciary 1985
[11] Article 10, Universal Declaration of Human Rights, 12/10/1948, United Nations, G.A. res. 217A(III)
[12] Article 14 (1) International Covenant on Civil and Political Rights, 12/16/1966, United Nations, GA resolution 2200A (XXI), 21 UN GAOR Supp. (No.16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force on March 23, 1976
[13] Paragraph 27, Vienna Declaration and Programme for Action in 1993
[14] Independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, Commission on Human Rights resolution 2003/43, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/ac9ab6db1f528667c1256d1f003b6191?Opendocument (29 November 2007)
[15] Article 2.14 (a) Universal Declaration on the Independence of Justice, Montreal, Canada, 1983, World Conference on the Independence of Justice
[16] Id. Article 2.11
[17] Id. Article 2.13
[18] Article 1 of the Universal Charter of the Judge, 1999
[19] Id, Article 2
[20] The Bangalore Principles of Judicial Conduct, 2002
[21] Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, “Beijing Principles”, 1995, 6th Conference of Chief Justices of Asia and the Pacific Region
[22] Article 9(1), ICCPR, Article 5(1), ECHR, Article 7(1), ACHR, Article 6 ACHPR
[23] Article 9(2), ICCPR, Article 5(2), ECHR, Article 7(4) ACHR, Paragraph 2(b), ACHPR
[24] Principle 1, Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. The Human Rights Committee has stated that “all persons who are arrested must immediately have access to counsel.” (Concluding Observations of the Human Rights Committee, Georgia, UN Doc. CCPR/C/79 Add.75, April 1, 1997
[25] Article 9(3), ICCPR, Article 5(3) ECHR, Article 7(5) ACHR, Paragraph 2(c) ACHPR
[26] Article 7, ICCPR
[27] Human Rights Commission Resolution 1997/38 para 20 holding that “prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment.” See further, the Report of the Special Rapporteur on Torture, UN Doc E/CN.4/1995/34, para 926(d) and findings of the Inter-American Commission (Report on the Situation of Human Rights in Bolivia, OEA/Ser.L/V/II.53, doc rev.2, 1 July 1981 at 41-42) and Inter American Court (Suavez Rosero Case, Ecuador, 12 November 1997).
[28] Daphne Huang, “Right to a fair Trial in China”, Pacific Rim Law & Policy Journal January 1998, 7 Pac. Rim L. & Pol’y 171, Online-http://www.lexisnexis.com/us/lnacademic/search/homesubmitForm.do
[29] A Basic Guide to Legal Standards and Practice, Lawyers Committee for Human Rights, March 2000 p 11, Online www.lchr.org
[30] Article 75 of Additional Protocol I of 1977 guarantees all fair trial rights viz. right to be informed promptly, to present before judge, right to be presumed innocent, not to be compelled to be a witness against himself, no crime declared if existing law does not have any provision at that time and right to public hearing etc.
[31] see Article 10 of UDHR, Article 14910 of ICCPR, Article 6(1) of ECHR and Article 8(1) IACHR
[32] see also Article 11(1), UDHR, 14(2)ICCPR, 6(2) ECHR, 8(2)ACHR, 7(1)(b)ACHPR
[33] Article14(3) (a) ICCPR, 6(3) (a) ECHR,
[34] Article 14(3)(b) ICCPR, 6(3)(b) ECHR, 8(1)(c) IACHR
[35] Article 14(3) (c) ICCPR, 7(1)(d) ACHPR
[36] Article 14(3)(d) ICCPR, 6(3)(c) ECHR, 8(2)(d) IACHR, 7(1)(c) ACHPR
[37] Article 14(3)(e) ICCPR, 6(3)(d) ECHR, 8(2)(f) IACHR
[38] Article 14(3)(f) ICCPR, 6(3)(e) ECHR
[39] Article 14(3)(g) ICCPR, 6(3)(d) ECHR, 8(2)(g) IACHR
[40] Article 15(1) ICCPR, 7(1) ECHR, 7(2) ACHPR
[41] Article 14(7) ICCPR
[42] Article 14(5) ICCPR, European Convention, Article 2 of Protocol 7; American Convention, Article 8(2)(h); and African Commission Resolution, para 3.
[43] See n 44 above
[44] Article 14(6) ICCPR, European Convention, Article 3 of Protocol 7; and American Convention, Article 10.
[45] Human Rights Committee General Comment No. 13/21 of April 12, 1984, para 8
[46] See for example the concerns of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions in his 1993 Report (7 December 1993, UN Doc E/CN.4/1994/7 at paras 113 and 404).
[47] Burton Atkins, “Alternative Models of Appeal Mobilization in Judicial Hierarchies”, 37 American Journal of Political Science 780 (1993).
[48] Article123 The Constitution of the People’s Republic of China (Adopted on December 4, 1982) (here in after the Constitution 1982)
[48] Id.Art.134
[49] Id. Art. 124
[50] Id.Art. 127
[51] Id. Art. 126,
[52] Richard B. Lillich, Hurst Hannum at al, International human Rights: problems of Law, Policy and Practice (4th ed.)ASPEN Publishers NY, p.1116
[53] Convergence and the Judicial Role: Recent Developments in China at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_110702 (25 November 2007).
[54] Art. 127, The Constitution 1982
[55] Id. Art. 130
[56] Id. Art.129
[57] Zhonghua Renmin Gongheguo Xianfa PRC Const. arts. 62, 67 (1982). See also Michael Davis, Chinese Perspectives on Human Rights, in Human Rights and Chinese Values 3, 9-10 (Michael C. Davis ed. 1995).
[58] Daphne Huang, “Right to a Fair Trial in China,” Pacific Rim Law & Policy Journal, January 1998, vol. 7, p 188
[59] Id.
[60] Art. 128, the Constitution 1982
[61] Id.
[62] Id Art. 126
[63] BBC Online News quoted Xiao Tang, president of the Supreme People’s Court of China, http://www.savetibet.org/campaigns/pl/resolutions/resolution.php?id=54
[64] see, Fu Hualing, n 44 above at 207
[65] Ibid
[66] Id pp 208, 209
[67] Benjamin L. Liebman, “China’s Courts: restricted Reform,” The China Quarterly, ( 2007) 191 p 620
[68] Ibid at p 625
[69] Judges Law of the People’s Republic of China, 1995, Article 1(here in after judges law 1996 where necessary)
[70] Id. Art. 2
[71] Id. Art. 7(4)
[72] Id. Art. 7(6)
[73]Id. Art, 7(7)
[74] Id. Art. 11
[75] Art. 67 The Constitution 1982
[76] Art 8, The Judges Law 1996
[77] Id. Art. 34
[78] Id. Art. 36
[79] Id. Art. 8
[80] Article 33, the Constitution 1982
[81] Id.Art.51
[82] Id. Art. 39
[83] Id. Art. 40
[84] Id. Art. 41
[85] Id Art.125
[86] Id.Art.134
[87] Id
[88] Article 2, Criminal Procedure Law of the People’s Republic of China (1996) (here in after CPL 1996 where necessary)
[89] Id. Art. 32
[90] Id. Art. 34
[91] see n 57 at 195 above
[92] Id
[93] Art. 43, CPL 1996
[94] Id. Art. 59
[95] Id. Art 65
[96] Id. Art. 71
[97] Id. Art. 152
[98] Id. Art 180
[99] Id. Art. 42
[100] Id. at art. 43.
[101] Article 100, Interim Constitution of Nepal, 2007 (here in after- Interim Constitution 2007, where necessary)
[102] Id. Paragraph 3 of preamble
[103] Id. Art. 101(2)
[104] Id. Art. 102
[105] Id. Art. 149
[106] Id.Art103,149
[107] Id. Art.103,113
[108] The Council is composed by Prime Minister (Chair), Chief Justice, Speaker of the legislature-Parliament & three ministers designated by the Prime Minister. The majority represents the executive’s voice.
[109] Art. 113 The Interim Constitution
[110] Id. Art. 109
[111] Id. Art. 113
[112] Id. Art. 133, it comprises with chief Justice (Chair) and one senior judge from SC, Law Minister, One senior advocate appointed by CJ, One jurist nominated by PM
[113] Strategic Plan of the Nepali Judiciary (2004-2008)
[114] Id, Art 109(7)
[115] Id.Art. 104
[116] There are two statutes existed in Nepal, one for the Supreme Court judges and another for the Appellate and District court judges which determines the conditions of services and facilities of judges.
[117]. Art. 103, The Interim Constitution 2007
[118] Id. Art. 105,
[119] Id. Art. 109(10)
[120] Id.
[121] Id. Art. 107
[122] Kalyan Shrestha, “Judicial Education as a Vehicle for Change,” Fifty Years of Supreme Court of Nepal (Kathmandu: 2006)pp 60, 62.
[123] Even though the training needs of the judiciary were to some extent fulfilled by the Judicial Service Training Center (in existence since 1982 under the authority of the Ministry of Law and Justice), after the new constitution was promulgated in 1990, it was considered anachronistic to have the government train judges. This practice ran counter to judicial independence, hence the need for a separate, autonomous institution. That is why a autonomous body- National judicial Academy is established in 2004 to train judges.
[124] Art. 12(1) The Interim Constitution 2007
[125] Id. 12(2)
[126] Id. Art. 13(1)
[127] Id Art. 24
[128] Id. Art. 24(6)
[129] Id. Art. 26
[130] Id. Art. 25
[131] Baseline Survey on Criminal Justice System of Nepal, Centre for Legal Research and Resource Development (CeLRRd) 2003, p.42
[132] Id. at.51
[133] Section 17 of National Code 1963
[134] Id.at 54
[135] Peter Russell and David M. O’Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia, 2001)
[136] Judicial Independence Overview and Country Summaries, Asian Development Bank, Judicial Independence Project RETA No. 5987, Submitted by The Asia Foundation October 2003, p 2
[137] see Benjamin L., n 51 above at 621
[138] DFID, A Preliminary Study on Law, Justice and human Rights at 58, (1999)
[139] Nepal’s Penal System n Agenda for Changes, Centre for victim of Torture Nepal (CVICT),2001, p35
[140] see Fu Hualing, n 44, 49 above at 196
[141] Ibid
[142] see n 135 at 35
[143] see, Fu Hualing, n 44, 49 above pp 211, 212
[144] Fu Hualing “Putting China’s Judiciary into Perspective: Is it Independent, Competent and Fair?” in Erik G. Jensen and Thomas C. Heller (eds.) Beyond common knowledge (Stanford University Press, 2004)p 193
[145]OHCHR, UN treaty system, Fact sheet no. 30, p 15, http://www.ohchr.org/Documents/Publications/FactSheet30en.pdf