Supreme Court Considers Removing Lottery System for Case Assignment Amidst Judicial Controversy

Kathmandu. There is talk of removing the lottery system for case assignment in the Supreme Court. The lottery system for case assignment was implemented after a long protest by the Nepal Bar Association, the umbrella organization of legal practitioners.

Lately, the conflict between the judiciary and the executive and legislative branches has been increasing. Polarization within the judiciary has also begun to appear after the Constitutional Council recommended the name of Justice Dr. Manojkumar Sharma, who is fourth in seniority, for Chief Justice. It is in this context that discussions about removing the lottery system for case assignment have intensified within the judiciary.

The lottery system for case assignment was implemented in the Supreme Court from November 15, 2078 BS. Prior to that, the Judicial Reform Committee had suggested implementing reforms in the case assignment process and implementing the lottery system to control corruption and irregularities rampant in the judiciary.

The Judicial Council had recommended six names for the post of Chief Justice. From among those names, the Constitutional Council recommended the name of Justice Dr. Sharma, who is fourth in seniority. Following this, the Supreme Court justices have been divided into two factions.

After Dr. Sharma was recommended as the proposed Chief Justice, there was even an exchange of words between the justices in the Supreme Court's Full Court meeting. Due to the exchange of words in the Full Court meeting, the proposed Chief Justice Sharma decided not to sit in the bench.

According to sources close to him, once he becomes Chief Justice, all justices of the Supreme Court will convene a Full Court meeting, and if a consensus is not reached, he plans to remove the directive for case assignment through the lottery system and reintroduce the system where the Chief Justice assigns cases, even if it is based on a majority vote.

According to sources, if Sharma takes leadership of the judiciary, he may put pressure on acting Chief Justice Sapana Pradhan Malla, Justice Kumar Regmi, and Justice Hari Prasad Phuyal to resign. Sources say that pressure may be created for their resignation, citing indications that they might not cooperate in judicial proceedings.

If the three justices do not resign, and the case assignment is managed through the lottery system, they will not face obstacles in sitting on the bench. Therefore, Sharma can strategically call a Full Court meeting of the Supreme Court and increase pressure by removing the lottery system and implementing a system where the Chief Justice manages case assignment and bench formation.

Sources said that if the Chief Justice's decision is passed by the Full Court, the three justices may be rendered jobless by not being assigned to benches, increasing pressure for their resignation. If this strategy is not successful, there is a possibility of an impeachment motion being filed against the three justices. Sources claim that Rastriya Swatantra Party (RSP) lawmakers are preparing to impeach the three justices citing various reasons. The system allows for an impeachment motion to be filed in the Parliament Secretariat with the signatures of one-third of the lawmakers.

If All Authority is Given to the Chief Justice, Disputes May Increase Again

For a long time, the Chief Justice has been selecting justices, forming benches, and assigning cases in the Supreme Court. The legal practitioners launched a long protest against the then Chief Justice Cholendra Shumsher Rana due to the non-implementation of the report of the Judicial Reform Committee, chaired by then Supreme Court Justice Harikrishna Karki. Even the Supreme Court justices revolted. Amidst the protests, the then Chief Justice Rana was forced to adopt the lottery system, but ultimately, an impeachment motion was filed in Parliament against Rana, citing various allegations.

The impeachment motion has not yet been concluded. In this situation, Manojkumar Sharma, who was favored by the then Chief Justice Rana, has been proposed as the Chief Justice. If Sharma follows the path of the then Chief Justice Rana, it could have long-term consequences for the judiciary.

Currently, the formation of benches and assignment of cases are done daily by justices drawing lots under the management of a three-member committee led by the Chief Justice or the seniormost justice of the Supreme Court, along with two other senior justices.

Senior Advocate Dinesh Tripathi said that if the case assignment is again done by the Chief Justice by removing the lottery system, it will lead to anomalies and irregularities in the judiciary. Tripathi stated that removing an established practice will come at a high cost.

Tripathi argues that since the study committee led by Justice Harikrishna Karki, formed for judicial reform, had already pointed out corruption and irregularities in case assignment and management, it is no longer possible to revert to the old system.

Advocate Kirtinath Sharma Poudel believes that if the lottery system is removed, legal practitioners may launch protests again. He said, 'We had to protest for one hundred days against the system where the Chief Justice arbitrarily assigned cases and selected justices and formed benches, citing distortions and anomalies in the judiciary. It is unlikely that the same situation will arise again.'

Why Was Case Management Done Through Lottery System?

Reports from various committees formed to study the functioning of the judiciary concluded that the main reason for irregularities in the courts was the manipulation in case and case management. During the tenure of Chief Justices accused of abetting irregularities, there was a tendency to manipulate controversial cases by forming benches favorable to them and assigning those cases to those benches. It was argued that such benches would decide cases in accordance with the Chief Justice's interests and preferences. Therefore, the study committee led by Justice Harikrishna Karki, formed for judicial reform, suggested the lottery system and autonomous case assignment as alternatives.

In the lottery system, the Chief Justice cannot form a bench as desired because it is not predetermined which justices will be in which bench. On the other hand, even if a bench is formed favorably by chance, it is not guaranteed that the case of interest to the Chief Justice will fall into that bench.

Even if a case of personal interest falls into a bench, if the justices are not favorable, they can express a dissenting opinion. Therefore, it is believed that justice is saved from being compromised during case resolution. If the Chief Justice takes responsibility for case management, it will open the door for forming benches on a 'pick and choose' basis favorable to the ruling party and the government. Stakeholders say that this poses a risk of the judiciary always being under the shadow of power.