Supreme Court Employees Refuse Acting Chief Justice's Order on Writ Registration

Kathmandu. The impact of the Constitutional Council recommending a Chief Justice against tradition has started to show in the Supreme Court. The court employees on Monday refused the written order given by Acting Chief Justice Sapana Pradhan Malla to register the writ petition filed against the recommendation and set a date for the hearing.

A new dispute has arisen in the Supreme Court after the employees left their workrooms instead of registering the writ for hearing. The Constitutional Council had recommended Justice Dr. Manoj Kumar Sharma, who was in the fourth position, instead of Acting Chief Justice Malla for the post of Chief Justice. Senior Advocate Dinesh Tripathi, Advocate Geeta Thapa, and Premraj Silwal had filed separate petitions questioning the legality of the Council's recommendation.

The Supreme Court administration had refused to register the writ on May 8, issuing a 'darapith' (rejection). Upon drawing the attention of Acting Chief Justice Malla, the writ petitioner Tripathi stated that a written order was issued to register the petition against the rejection by 1 PM on Monday and to set the date for Tuesday. However, the order has not been implemented, according to Senior Advocate Dinesh Tripathi.

Tripathi stated that the attempt to prevent judicial review of the case related to the proposed Chief Justice is an interference in the independent judiciary. According to him, the non-registration of the petition against the rejection is an unprecedented and questionable event in Nepal's judicial history.

He said that the administration has not provided any written reason for why the petition has not been registered even after a week. Tripathi emphasized that no constitutional or legal dispute can be kept outside of judicial review. He termed the current situation as a judicial deviation, stating that the independence of the judiciary is not for the judges but for the protection of citizens' rights.

He warned that if the judiciary is prevented from testing constitutionality, both the constitution and citizens' rights will be in crisis. Expressing concern over the situation at the Supreme Court, he said, 'The Acting Chief Justice has issued a written order. What has the proposed Chief Justice done now? It has not been officially revealed. But if the proposed Chief Justice instructed not to register it, then this is a serious matter. Not allowing a writ that could have an adverse effect on oneself to be registered? That might not be true.'

He added, 'Judicial review of any constitutional question must take place. The Supreme Court is an independent institution established to judicially review the actions of any state institution, to test its constitutionality, its legality, and its constitutionality. The executive cannot make it its subordinate. It cannot appoint the person it chooses as a judge. That could be a threat to the judicial process.'

'It is unprecedented in Nepal's judicial history for a petition against rejection not to be registered. It has been a week. The Acting Chief Justice's order must be implemented. It has not been registered yet. For what reason, why it has not been registered, no reason is given. So far, no written reason has been given for why my petition against rejection has not been registered. The judicial institution cannot remain in opacity. The employee administration also has accountability. They cannot run away like this,' he said. 'I will not register it, the Supreme Court administration does not have that freedom or privilege. They must register the cases presented before them and if they reject it, they reject it. The petition against rejection should be registered, and the bench will look into it. The bench will issue an order whether to register it or not.'

He said, 'If the written order given by the Acting Chief Justice is not followed, then how can we trust the judicial system in the future? We are in a dangerous situation, our judiciary is in danger, our constitution is in danger. The independence of the judiciary is in danger. What we should not forget is that the independence of the judiciary is not for the judges, but for us citizens. Only if the judiciary is independent can we have justice, can our rights be protected. If there is independent justice, if there is an independent judiciary, then it can curb the arbitrariness of the executive. Citizens' rights can be protected, the rule of law can be protected and promoted. But here, the judiciary is unable to perform its role.'

Senior Advocate Tripathi has urged the Nepal Bar Association, the legal community, the media, and civil society to take this matter seriously. Citing the example of a nationwide legal movement in India in 1973 after the seniority of judges was violated, he stressed the need for all sectors to raise a strong voice to protect the independence of the judiciary in Nepal.