Investigating Judges: The Constitutional Test Between Independence and Accountability
Sanket Kiranti
When questions arise about judges, it is not enough to ask whether judicial independence should be protected or accountability ensured. The real challenge is to uphold both at the same time. Recent reports concerning contacts and meetings between judges and an alleged intermediary have brought this difficult issue back into public debate. Such reports alone cannot establish anyone’s guilt. But serious allegations cannot simply be ignored. An impartial, evidence-based and timely investigation is the only credible way forward.
In an interview with Kantipur Television, senior advocate and former law minister Govinda Bandi said the Supreme Court’s full-court decision had caused the judiciary to lose its authority to investigate judges itself. His concern is understandable: by referring only to the “relevant authority,” the court left unclear who should investigate, under what legal authority and within what time frame. Yet it would be an incomplete legal analysis to conclude that the Supreme Court has surrendered all its authority. Preliminary review of complaints against judges, disciplinary proceedings, corruption investigations and impeachment are distinct matters. The Constitution assigns them different institutions and procedures.
Nepal’s Constitution gives the Judicial Council responsibility for recommending or advising on judicial appointments, disciplinary action and other matters related to the administration of justice. It also provides for complaints against judges to be reviewed and, where necessary, for an inquiry committee to be formed for a detailed investigation. The constitutional route for removing the Chief Justice or a Supreme Court justice, meanwhile, is impeachment. The Constitution separately defines the Judicial Council’s authority in cases involving corruption or abuse of authority. Therefore, a blanket demand that “the Supreme Court investigate the matter itself” or that “Parliament investigate everything” cannot resolve the constitutional complexities. The first task is to establish which authority has jurisdiction over each allegation.
The Supreme Court’s full court is an important forum for deciding matters of internal administration and the institution’s response. But when allegations concern its own members, an investigation conducted solely by the full court could raise questions about conflicts of interest and impartiality. At the same time, allowing political leaders or the executive branch to exercise direct control over judges would pose an equally serious risk to judicial independence. The solution is not to give one side unchecked authority. It is to establish a balanced process that provides for an independent inquiry, a fair hearing and public accountability within the limits set by law.
There is no single international model for handling such cases. In India, once impeachment proceedings against a judge are admitted, a three-member inquiry committee may be formed. It includes a Supreme Court judge, a Chief Justice of a High Court and a distinguished jurist. This is a model for inquiries connected with impeachment; it does not mean that the same committee investigates every complaint against a judge. In the United Kingdom, a separate body assists in handling complaints about judicial conduct. There, too, a judge’s personal conduct is distinguished from disagreement with a court ruling. The proper way to challenge a ruling is through appeal, not a disciplinary complaint.
The United Nations’ basic principles on judicial independence call for complaints against judges to be handled promptly and fairly, for judges facing allegations to have an opportunity to respond, and for disciplinary or removal decisions to be based on establish…
