Economic Ambition, Constitutional Reform, and the Question of an Independent Judiciary

The Gen Z movement had a profound impact on Nepal’s business sector, administrative structure and judicial system. In the federal election held thereafter, Rastriya Swatantra Party secured nearly a two-thirds majority in Parliament, an extraordinary development in Nepal’s political history. Opportunities to form a government with such a clear mandate arise only rarely. Such a mandate grants the government not merely the authority to govern but also a historic responsibility to reform the institutions of the State.

The government formed with an almost two-thirds majority has generated new hope among the public. It has set an ambitious target of building a $100 billion economy by 2031. Such a target has naturally created optimism among the private sector, businesses and prospective foreign investors. At the same time, however, criticism has emerged that the executive has exercised influence or interfered in the appointment of the chief justice. This criticism raises an important question: can the goal of economic development be achieved without an independent and credible judiciary?

The economic development of any country does not depend solely on policies, plans and investment. Investors commit capital only where there is legal stability, impartial administration and an independent and competent court system capable of resolving disputes. Citizens, too, can trust the state only when they believe that courts are able to deliver justice above considerations of power, position or political influence.

An independent judiciary is therefore not merely a matter of democracy. It is directly connected to the economy, investment, protection of property, enforcement of contracts and public confidence. The trust of citizens, businesses and foreign investors can be sustained only when they perceive courts as impartial, competent and free from political influence.

Against this background, several fundamental questions naturally arise. If public and investor confidence in an independent judiciary weakens, can the government realistically achieve its stated goal of building a $100 billion economy? Does controversy surrounding judicial appointments not undermine the independence and credibility of the judiciary? Is the present constitutional framework for appointing judges sufficient to establish an independent judiciary? And where the principle of seniority has been disregarded, how can the courts preserve their institutional credibility?

Among the three principal organs of the state – legislature, executive and judiciary – the judiciary is the institution most dependent on public confidence, institutional tradition and impartiality. The legislature derives its legitimacy from direct elections. The executive derives its authority from political mandate and parliamentary majority. The judiciary, however, does not receive a direct electoral mandate. Its legitimacy and authority flow from impartiality, independence, competence and public trust.

The Constitution of Nepal envisages an independent, impartial and competent judiciary. However, such a judiciary cannot be created merely through constitutional declarations or legal language. The method of judicial appointment, the criteria applied in appointments, the transparency of the process, and the composition of appointing bodies all determine the judiciary’s actual independence.

The Constitution of Nepal provides for the Judicial Council for the appointment of judges. The Judicial Council comprises the chief justice; the federal minister for law and justice; the senior-most justice of the Supreme Court; one legal expert appointed by the president on the recommendation of the prime minister; and one legal practitioner appointed by the president on the recommendation of Nepal Bar Association.

Similarly, the Constitutional Council, which recommends the appointment of the chief justice, consists of the prime minister; minister for law and justice; speaker of the House of Representatives; chairperson of National Assembly; the leader of the opposition party in the House of Representatives; and deputy speaker of the House of Representatives.

A review of these two institutions shows that the executive and political leadership may exercise direct or indirect influence over the judicial appointment process. The prime minister, minister for law and justice, speaker, deputy speaker, and chairperson of the National Assembly are office-holders who emerge through political processes. The presence of a member appointed on the recommendation of the prime minister also raises legitimate questions regarding the independence of the Judicial Council. Consequently, there is a risk that political calculations, party interests, power-sharing arrangement, or personal proximity may influence judicial appointments.

Political participation is not, in itself, necessarily improper. However, when political actors become overly influential in the appointment of judges, doubts inevitably arise about judicial independence. It is not enough for the judiciary to be impartial; it must also be seen and experienced by the public as impartial. For public trust in judicial decisions to endure, citizens must be confident that the appointment of judges itself is fair, transparent and based on merit.

An independent judiciary is difficult to sustain where the appointment process is vulnerable to conflicts of interest, political influence or attempts to shape the judiciary through appointments. It is precisely for these reasons that several countries have reformed their laws and institutional structures relating to judicial appointments.

The United Kingdom, after a long constitutional and legal evolution, enacted the Constitutional Reform Act in 2005. The act introduced an independent institutional mechanism for judicial appointments and clarified the procedures, criteria and responsibilities governing such appointments. Its objective was to reduce political influence and create an environment in which judges would be appointed on the basis of merit, competence and experience. It also sought to minimise disputes and conflicts of interest associated with judicial appointments.

India’s experience is equally significant. In 1973, during the tenure of Prime Minister Indira Gandhi, the senior-most judge was not appointed chief justice; instead, a judge ranked fourth in seniority was appointed. This led to major constitutional and political controversy. The incident raised serious questions concerning the principle of seniority, judicial independence and executive influence over the judiciary.

In the years that followed, the Supreme Court of India developed the collegium system through constitutional interpretation. The system sought to ensure a decisive role for the judiciary in judicial appointments. Although the collegium system has itself been criticised for its lack of transparency and accountability, its principal purpose was to limit excessive executive influence over judicial appointments.

In 2014, an attempt was made in India to replace the collegium system through the National Judicial Appointments Commission. However, the Supreme Court of India struck down that arrangement. The decision demonstrated that judicial appointments are not merely an administrative issue; they are closely linked to judicial independence, separation of powers and constitutional balance.

Nepal has also institutionalised parliamentary hearings. Their theoretical basis appears, to some extent, to resemble the practice in the United States. In the United States, legislative hearings serve as a check and balance on the president’s role in judicial appointments. Nepal’s system of government, however, is parliamentary in nature and therefore more closely resembles the systems of the United Kingdom and India.

For this reason, parliamentary hearings in Nepal should not remain merely a constitutional formality or a display of political majority. Their purpose should be to examine the proposed appointee’s legal knowledge, integrity, impartiality, professional competence, public conduct and commitment to constitutional values. If parliamentary hearings become a mechanism for legitimising party-based decisions, they risk weakening rather than strengthening judicial independence.

The government has recently formed a committee for constitutional amendment. Constitutional amendment is not an ordinary or casual exercise. A constitution protects the balance of power among state organs, citizens’ rights, institutional accountability and democratic values. If its fundamental features are weakened or narrowed, the very essence of the Constitution may be altered. In such circumstances, there is a risk that the Constitution may no longer function as intended.

Accordingly, any amendment to the constitutional framework governing judicial appointments must be approached with restraint, seriousness and a long-term institutional perspective. The purpose of such reform should not be to expand executive influence. Rather, it should be to make the appointment process more transparent, merit-based, impartial and publicly credible.

Ultimately, an independent judiciary is not merely a legal principle or a constitutional phrase. It is the foundation of democratic protection, citizens’ rights, business confidence, investment security and economic development. A government that seeks to build a $100 billion economy must also strengthen the independence, credibility and institutional dignity of the judiciary.

Economic ambition and judicial independence are not competing objectives; an independent, impartial and competent judiciary is the very foundation of sustainable economic development.