Nepal’s constitution does not state clearly about political affiliation or membership as criteria for ineligibility for the position of the judge. Can they remain members of a political party? Or can a person who served as a parliamentarian be appointed in the position of judge? How can possible conflict of interest be avoided?
Although the 23 February decision of the Supreme Court on house dissolution set a precedent and firmly established the separation of powers between three branches of the state and established constitutional supremacy, the time taken by the Supreme Court to determine the bench and the prolonged hearings of the case raised serious doubts on judicial fairness. All eyes were on the Supreme Court regarding whether the Court would be able to protect constitutionalism and maintain its integrity - keeping itself away from the political influence.
Public perceive that the judges are and can be influenced politically. Nepal's judicial history has proved that the political influence is the most common threat. Historical evidence shows that during the royal regime, it was controlled by the King and the royal palace and after the establishment of democracy by the political forces – judges are appointed based on political affiliation and political bhagbanda (sharing) and family ties. The provisions of the Interim Constitution, 2007 and the current Constitution, 2015 governing the selection, appointment and removal of judges reflects absolute political control over the judicial branch. Many of them owed their preferment to their party connections and disincline to sever against them undermining judicial integrity and independence.
A Judge can be a member or politically affiliated in his individual capacity with a political party of his choice as he is having freedom or right to choose his own choice as a citizen
i think it is an established principle that a judge must not be biased. a judge is someone who dedicates his/her life to settle the legal disputes among people, to apply the law fairly and equally regardless of faith, sex, colour, or political affiliation. therefore, the only way to preserve this established principle is that a judge must not come from any political party or background. the judge affiliates only to the Law.
a person is required to pass a impartiality test before they can apply for a seat on the bench. It is forbidden to demonstrate Any clear biases or political leaning. for example a judge wearing a trump „make American great again“ cap was removed feom his position from wearing this cap on while residing over a trial
In ideal terms, nothing prevents a judge from being affiliated to a political party. Humans, Aristotle had informed us, are political animals by nature. Judges have political persuasions and preferences. However, the official role of a judge requires him/her to maintain neutrality in the adjudication of cases. This shall require that he/she maintains the same standards when judging on his/her political party. Herein, lies a big difficulty, which requires a great balance of emotions and strength of will on the part of the judge. Humanly speaking, a judge might find great difficulty, remaining impartial in such a case. Prudence, then, demands that a judge doesn't affiliate him/herself to a political party, to avoid conflicts of interest.
Hello?
In Brazil is impossible, have prohibed at Federal Constitution.
He escrito un articulo sobre selección de los miembros del Tribunal Constitucional Peruano, donde hice indagaciones muy importantes, pues en el mundo muchos jueces históricamente son seleccionados por Poder Ejecutivo o Poder Legislativo, incluso por los tres poderes del Estado, es decir Poder Judicial, empero el Perú tiene un avance muy significado a la fecha, pues existe un organismo constitucionalmente autónomo la Junta Nacional de Justicia, entidad que se encarga de seleccionar a los Jueces por merito, considero esto es un avance, porque los jueces NO PUEDEN SER ELEGIDOS, pues ese modelo ha fracasado en el mundo, por lo tanto los jueces, considero que NO DEBEN ESTAR AFILIADO A NINGUN PARTIDO POLITICO, PARA GARANTIZAR NO SOLO LA AUTONOMIA DEL PODER JUDICIAL SINO SOBRE TODO EL PRINCIPIO DE IMPARCIALIDAD DE LOS JUECES que los justiciables acudimos a un tercero que es un funcionario del Estado, los "Jueces", además el suscrito he sido Juez Superior Supernumerario, es muy importante resolver los casos sin ninguna influencia ni contaminación, sino basarse en la normativa, hechos acreditados con medios probatorios y con responsabilidad.
In my opinion, any judge who has no intentions to serve in the higher courts can be a member of any political party. However, only those with no ties to any political party can serve in the Supreme Court and Constitutional Court. This is simply because they could use their judicial powers to settle political feuds.
A judge can not be a member of a political party which is a reasonable restrict restriction to discharge his duty.
There are two levels in your question. The first is legal - well if it is not prohibited than it should be permitted in your country. You cannot limit political rights without express notion in constution or in laws. Second one is about what the law should be (de lege ferenda) where I believe you should advocate for change in legislation and for explicit prohibiton of political membership of judges. In our state (Slovakia), as well as in many other states (as demostrated by some of colleagues here) membership of judges in a political party is prohibited in the Constitution. Nor the judge may have any fuction in executive branch (being a president or minister, even without formal political affiliation) nor in legislative branch (being a member of parliament, even without formal political affiliation). By this we are defending not only impartiality of judges (in political sensitive cases it is very important, especially at the level of supreme or constitutional court) but also separation of power
Spanish legislation prevents this. It is a different matter if there is a certain sympathy for a political party and it is described in the news as "conservative" or "progressive".
The profession of Judge and Politician (member of a Political Party) are two different professions. The organs / institutions that overshadow the Judges are different from the organs / institutions that overshadow politicians. Likewise, their duties and functions are also different. The duties and functions of judges are to enforce law and justice through their decisions. In carrying out their duties and functions to uphold law and justice, judges must be free and independent from the influence of other powers (executive and legislative powers). Judges' decisions in all judicial institutions in Indonesia, include the attributes of the One and Only Godhead.
In court proceedings, judges are commonly called with the predicate WHICH. Judges are perceived as representatives of God in the world in providing a sense of justice for justice seekers. Such predicates are not attached to politicians (members of political parties). Politicians join political parties for the purpose of occupying or seizing power through general elections. Efforts to seize power through general elections, in practice sometimes justify all means, including the practice of money politics, and other modes that are contrary to democratic values. A politician is full of political interests, because politicians must fight for the interests of their political parties. In Indonesia, many politicians from various political parties who are caught in corruption cases have been caught red-handed by the Corruption Eradication Commission (KPK), including politicians with the status of regional heads.
So, to maintain the honor and dignity of the court as an institution that upholds law and justice, the judges must be free from any political party affiliation. Therefore, legal and ethical rules must be able to prevent a person from becoming a Judge who comes from a Political Party, or is affiliated with a Political Party.
It is foregone that bias should not suffice in undertaking his/her duties while serving as an agent of Justice. However it is well within his/her right to belong to a political party of choice & exercise any duty within that regard as a citizen of a given state. Case in point, Chief Justice Maraga of Kenya who ordered for a presidential re-run citing irregularities in 2017 went ahead to cast his ballot for a preferred candidate during the run off.
One of the powers of the Constitutional Court in Indonesia is to decide on the dissolution of political parties (Article 24C paragraph (1) of the Indonesian Constitution). Starting from this article, then a Constitutional Justice should ideally not be affiliated with a political party or a member of a political party. This is because if there is a case regarding the dissolution of a political party, then the Constitutional Justice who is affiliated with a political party will face a conflict of interest. It could be that the attitude of the constitutional judges is not independent or not independent in deciding cases to dissolve political parties.
It is quite normal in Switzerland. However, at this point in time an initiative has been started to change this on the level of our top court, the Federal Tribunal, see here (in the Swiss official languages only, I am afraid, which does not include English): https://www.justiz-initiative.ch/initiative/initiativtext.html.
The Italian Constitution allows the law to establish limitations on the right of judges to join political parties (Article 98, paragraph 3). Legislative decree 109/2006 provides that membership, including systematic and continuous participation in political parties, constitutes a disciplinary offense for a magistrate. However, judges can run for election, so the limit has always been the subject of controversy (see Constitutional Court, judgments 224/2009 and 170/2018).
The judges of the Constitutional Court, on the other hand, are not prohibited from joining a party, but they cannot carry out activities related to political associations or political parties.
Yes a judge be politically affiliated, he equally has the right to a Political opinion and Political ideology.
But he is forbidden from being influenced by his political affiliation in rendering his judgement, for if it happens so that his judgement was influenced by his political affiliation, it's a very good ground of appeal.
My opinion.
A judge is meant to be a non partisan. Meaning that he has to have no affiliation to any sort of political party.
The main rationale behind that as I presume is so that better justice can prevail, because if a matter comes before him concerning his party for example, their would be an impeding injustice!
The constitution is not explicit on whether judges should be members of the political parties. However, judges are bound to preside over the cases before them fairly, partially and without bias.
Thank you everyone for sharing your ideas and opinions. Interesting to learn various experiences.
I think the role politics plays over the judiciary is mostly theoretical in many jurisdictions. Political influence is the most common threat that judiciary is facing, globally and in Nepal. When judges are appointed based on political affiliation, judiciary will be politically influenced and public also assumes that judges cannot put aside their political philosophies while fulfilling judicial functions. Judge Damon J. Keith of the Sixth Circuit, in Cincinnati, agreed that “Judges are policymakers because their political beliefs influence and dictate their decisions on important jurisprudential matters” (The New York Times, 16/o9/2019). Former Chief Justice of Nepal in his book states, “In my experience, judges are 40% responsible to distort judicial functions and mislead public trust on the judiciary” (Rayamajhi, 2019, p.307).
Judges are expected to observe high standards of conduct while performing judicial functions. But the the degree of ‘judicial values’ they respect, and follow is of critical concern. Do they maintain judicial integrity? How are they reflected?
Judicial integrity is a norm – a standard of human conduct as Sen (1999) defines, which include fairness, equity, dignity, freedom and equality, and are considered as one of the dimensions of public trust/confidence. Perhaps that’s the reason the focus of the Judicial reform efforts that have been trying to keep judiciary independent form the executive and legislative branch of government is to maintain the integrity and accountability to overcome this barrier and guarantee freedom from unwarranted intrusions.
Indeed, the political interference in the judiciary is a serious threat to democracy.
A judge cannot be a member of a political party. if he/she was a member of a political party previously, it could be a ground to challenge his/her nomination to the judiciary.
Article 178. The Constitution of the Republic of Poland: "(...) A judge may not belong to a political party or a trade union or perform public activities inconsistent with the principles of the independence of courts and judges". This requirement does not apply to membership of a political party prior to his appointment as judge.
Incidentally, each judge has his own political views. It is difficult for me to imagine a judge who does not have political views.
In Poland in 2012 there was a journalistic provocation. The journalist called the President of the District Court in Gdańsk. He introduced himself as an employee of the Chancellery of Prime Minister Donald Tusk. The judge asked for instructions. The conversation was recorded and made public.
The question is: how many more similar conversations have there been that no one will ever know? :)
Despite the fact that the laws allow it to a certain extent, I believe that it is not convenient for democracy for a judge to express his political preferences in public. Still less be part of a political party. And even less be part of a political party.
The Brazil's Constitution expressily forbides the political party filiation of judges and prosecutors precisely for preserve the impartiality, fundamental value of adjudication. In other hand, the constituion provide them a series of prerrogative also for preserve that impartiality: immovability, irreducibility of wages, and vitality.
Bidhya Chapagain
Before answering this question two more questions are needed to be answered. And we will end up with a third question, of which, it is hard to find a suitable answer. The questions are-
1. If a judge faces a situation where he has got a kin, a family member or a personal friend as an accused then what should he do?
The easy answer for it- showing respect to the doctrines of rule of law he should step aside. He should not be biased towards personal matters and try to avoid such situation.
2. But is it applicable for his political opinion? Can we expect that even if he steps aside, we can replace him with a suitable judge who is neutral?
Here comes an interesting point. If we allow the judges to have expressed political opinions, then all the judges will be divided into several groups on the basis of political parties. Cases where one political party is involved, there if we remove all the supporters of that political party and replace them with some judges of other political parties even after that we can not guarantee the proper implementation of the principles of rule of justice (especially this one- "No man should be judged in his own cause"). Because the judge from rival parties may cause engineered injustice.
So judges with political opinion is not good for the judicial system.
But, here comes a third confusing question.
3. Even if we ban a judge from joining a political party, we can not restrict his political opinion. He may be seen a good old reasonable and wise man, but for these qualifications of him, he has some certain political opinions. He is a concerned man and he understands politics, so how can we expect him having no political opinion. So banning them to join political party is not a solution because this will not reduce the threat of engineereed injustice. But where we know his political opinion there the judgements conferred by him can be challenged on the ground of his biasness. Those judgements can be examined in an easier way for possible injustice. So, from this point of vew, it is actually better to have knowledge about his political opinion by letting him join a political party.
So then what is the solution for reducing this all time available systematic injustice due to hidden or expressed political opinions of the judges?
My inclination is towards the oldest opinion on the book- a judge should be so wise that for the sake of the spirit of justice, he will not be a biased person and even where his own cause is being judges by him, even where there is no alternative solutions available, he will behave like a reasonable man having respect towards the spirit of justice..
Great. Your explanations were very interessant, and they invite us to reflect on the judge role in society. Congratulation!
A judge should be appointed from the people who never been involved in politics. Beyond the issue of neutrality, a judge's previous involvement with political party may affect his honesty due to the networking. A person should not continue his involvement with a political party after being appointed a judge.
I agree with Kazi Mohammad Mahbobor Rahman's opinion. Ideally, a judge should not be affiliated with a political party. Therefore, in the judges recruitment process, ideally it does not involve political institutions such as the House of Representatives.
The involvement of the national parliament in the judge recruitment process significantly affect the implementation of the principle of separation of power- there can be parliamentary tyranny. I appreciate Aminuddin Kasim's position regarding the answer of this question.
According to the Legislation of each Nation; in fact, in the European Union, NO !; but, apart from what has been said, it is a question of ETHICS AND AESTHETICS, as the Latin classics said "Caesar's wife, besides being honest, SHOULD SEEM IT"
In Iraq, the Constitution stipulated in four articles [1] that judicial power is independent. For example, the judges of the FSC in Iraq are nominated by the judiciary, not a political body, even though they must be confirmed by the Iraqi parliament
[1] Iraq Const. Articles 19, 87-88, 92.
Judges may have a political opinion. Tis is the basis on which they vote in an election. They may not have a political position in the party (such as representative or official).
Similarly, judges may have a religious conviction, but may not be an official in a religious community, such as a preacher or minister of religion.
When called on to judge, a good judge would decides on the facts before her or him - disregarding (as much as possible) their own political and/or religious opinion.
They would try (as much as possible) to put themselves in the shoes of a reasonable (wo)man.
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