Constitutional Council Breaks Tradition, Recommends Fourth Senior Judge for Chief Justice
Kathmandu. While the Constitutional Council has been recommending the name of the Chief Justice of the Supreme Court based on seniority and age in the past, this time that tradition has been broken.
It has been a practice that due to seniority being the main basis, political parties have been appointing judges to ensure that individuals close to them fall into the role of Chief Justice. It was predetermined who would become Chief Justice in the court within a period of 10 to 12 years.
This time, however, the government led by the Rastriya Swatantra Party, by breaking the past precedent through a Constitutional Council meeting, has recommended fourth-ranked judge Dr. Manoj Kumar Sharma for the post of Chief Justice in the judiciary.
The Constitutional Council has been recognizing the basis of seniority and appointing the first-ranked judge as Chief Justice. Various arguments are arising on the question of whether it is constitutional to recommend a fourth-ranked judge for the post of Chief Justice, leaving aside the first, second, and third-ranked judges.
Advocate Bhadraprasad (Swagat) Nepal states that the recommendation made by the Constitutional Council for Chief Justice is constitutional. 'The basis of seniority should not be just graying hair and political appointment,' he said, 'Now, judges should be appointed based on merit and capability rather than seniority.'
Article 129, Sub-section 3 of the Constitution states that a person who has worked as a Supreme Court judge for at least three years is eligible for appointment as Chief Justice. As per this sub-section, the Judicial Council had recommended the names of six individuals, including Sapana Pradhan Malla, Kumar Regmi, Hariprasad Phuyal, Dr. Manoj Kumar Sharma, Dr. Nahkul Subedi, and Tilprasad Shrestha, who have completed three years of service, to the Constitutional Council.
Article 129 of the Constitution contains provisions regarding the appointment and qualifications of the Chief Justice and judges of the Supreme Court of Nepal.
In the past, the Constitutional Council used to send the name of the judge from the first list based on seniority to the parliamentary hearing committee for the post of Chief Justice. After being approved by the parliamentary hearing, it was sent to the President's office for appointment as Chief Justice.
According to Advocate Nepal, there should be no objection to appointing any one of the recommended individuals based on the provisions of the Constitution. He stated that when drafting the constitution, provisions were included in the arrangements related to the Constitutional Council that would facilitate the appointment of judges based on political quotas. The Constitutional Council includes the Prime Minister, the leader of the opposition, the Chairperson of the National Assembly, the Speaker, the Deputy Speaker, and the Chief Justice. He argues that this arrangement fuels quota-based appointments of judges.
Advocate Nepal states that there is no need to hold the belief that a person with gray hair should be made Chief Justice based on this arrangement. He clarified that as long as the constitution exists, judges will be appointed based on political quotas, and the Chief Justice will be appointed based on that.
Advocate Nepal suggests that to make the recommendation for Chief Justice in the Supreme Court impartial, the criterion of appointing judges based on quotas should be removed first, and appointments should be made based on competition.
The government's argument is that while in the past the first-ranked judge based on seniority was made Chief Justice, this time the recommendation has been made based on merit and performance. However, Advocate Anantaraj Luintel states that the Constitutional Council has not been able to provide a sufficient reason.
He believes that the Constitutional Council should be able to clearly state that this process was followed based on a criterion, not just seniority and age.
'If the recommendation had been made by balancing the judge's judicial integrity, fearlessness, quality of judgment, and seniority appropriately, not just case disposal, this current dispute would not have arisen,' said Advocate Luintel.
He argues that if performance is to be the basis, a clear, transparent, and objective criterion must be set beforehand. He clarified that this basis should not be used solely to bring a specific person.
'The judiciary is currently seeking reform rather than change,' said Advocate Luintel, 'but a fundamental transformation is expected from the judiciary.'
He stated that seniority alone should not be the basis for recommending the Chief Justice. He believes that whether a fundamental change in the judiciary comes from 'superseding' in the appointment of the Chief Justice or through the appointment of honest judges in the judiciary as a whole are two important dimensions.
He said, 'The important question is that a fundamental change cannot happen solely through appointments and dismissals in the judiciary. Fundamental change means making the justice process efficient and effective in a fair and impartial manner in the judiciary.'
Advocate Luintel clarified that the judiciary should not be made a subject of experimentation. 'An attempt was made to create a directive regarding the criteria for judicial appointments in 2079/080 BS. If that criterion had been established, there would be no question of whose qualifications are how much now,' he said.
He mentioned that this effort was made during the time of the then Law Minister Govinda Bandi and Chief Justice Bishwambharprasad Shrestha, but it was not successful. He said, 'The criterion itself is a provision in the constitution.'
Luintel states that the Judicial Council should consider three things when appointing judges: capability, honesty, and experience. He said that if appointments are made by looking at the faces of political parties or leaders, ignoring these three main aspects, the judiciary will become even more dilapidated.
'Change in the judiciary is inevitable, but if the judiciary is made a place of experimentation in the name of change, it can cause serious damage to democracy, human rights, and the rule of law,' he said.
Advocate Murari Sapkota argues that the current recommendation for Chief Justice is in accordance with the constitution. He argues that according to the constitution, a person who has been a permanent judge in the Supreme Court for three years is eligible to become Chief Justice, so it is natural for any judge to be recommended for the post of Chief Justice.
He states that the tradition of recommending judges for the post of Chief Justice by the Judicial Council has been broken this time. 'Before the recommendation of the Chief Justice, the ordinance brought by the government regarding the Constitutional Council could have been called wrong. After that ordinance came, there is no reason why the Constitutional Council cannot recommend any judge with apparent qualifications for the post of Chief Justice,' said Advocate Sapkota.
Advocate Kirtinath Sharma Paudel says that while the judiciary has traditionally given priority to 'seniority', the recent recommendation of the fourth-ranked judge for Chief Justice, bypassing three senior judges, has created a new debate.
According to him, if seniority is bypassed in the name of 'merit' or 'qualification', the basis for it must be clear and transparent. Otherwise, he argues, it increases the risk of appointments based on political loyalty in the future.
This specific news has been automatically translated by AI. As a result, there may be some inaccuracies or language errors.
