Dr. Manoj Kumar Sharma Sworn in as Chief Justice Amidst Controversy

Kathmandu. Dr. Manoj Kumar Sharma has taken the oath as the Chief Justice. Dr. Sharma took the oath of office and secrecy from President Ram Chandra Paudel on Tuesday.

Based on the recommendation of the Constitutional Council, the Parliamentary Hearing Committee had approved the name of Dr. Manoj Kumar Sharma as the Chief Justice of the Supreme Court on Tuesday afternoon.

The Constitutional Council meeting held on April 24 had recommended the name of Sharma, who was in fourth seniority. With Sharma being approved as the Chief Justice by the Parliamentary Hearing Committee, he will now take the oath from the President and assume the chair of the Supreme Court. Sharma will serve as the Chief Justice for 6 years, meaning Sharma will be at the leadership of the Supreme Court until Baishakh 2089.

However, there is controversy surrounding the writ filed in the Supreme Court against the decision of the Constitutional Council to recommend Dr. Sharma as the Chief Justice. In such a situation, the interest in what will happen now with his arrival has increased.

The meeting of the Constitutional Council, after issuing an ordinance related to the Constitutional Council, had recommended 6 names for the Chief Justice of the Supreme Court based on seniority from the Judicial Council, among whom Dr. Sharma's name was in fourth seniority. And since he was recommended as the Chief Justice, the judiciary has been divided into two factions.

While his fellow judges in the Supreme Court are divided, Dr. Sharma is taking over the leadership of the judiciary. After being recommended as the Chief Justice, Dr. Sharma reached the Supreme Court on Baishakh 26 and marked his attendance, but citing busyness, he did not draw lots for the bench.

After Dr. Sharma was recommended, acting Chief Justice Sapana Pradhan Malla convened a full court meeting of all Supreme Court judges on Baishakh 26. On that day, the Supreme Court judges themselves made sarcastic remarks about Sharma, and later, from Baishakh 26, the benches did not sit.

From Baishakh 26 to Jestha 5, the writ filed against the decision of the Constitutional Council for recommending Sharma as the Chief Justice was rejected by the Supreme Court administration. The Supreme Court administration has kept the application against the rejection on hold.

Regarding the writ against Sharma, acting Chief Justice Sapana Pradhan Malla had instructed the administration to register the application against the rejection from her chamber. Later, when the staff did not comply with the order, the dispute between the Supreme Court judges became public. Amidst this dispute in the judiciary, Dr. Sharma has entered the Supreme Court as the Chief Justice. In such a situation, it remains to be seen how much cooperation he will receive from his fellow judges.

First Scenario:

As soon as Dr. Sharma enters the Supreme Court as the Chief Justice, his first step may be to appeal for cooperation from judges Sapana Malla Pradhan, Kumar Regmi, and Hari Prasad Phuyal, who are senior to him based on seniority. Sharma may make this proposal to all judges by calling a full court meeting. Sharma may call a meeting to facilitate the end of this dispute in the judiciary regarding the Chief Justice issue and call upon everyone.

There is also a possibility that the three judges may be absent from the meeting called by Sharma after he becomes the Chief Justice. The three judges may exercise their discretionary power and rebel by not attending the meeting. In the full court meeting, the three judges may not participate and not cooperate, or they may express a dissenting opinion on the proposal made by the Chief Justice. Currently, the dispute directly visible in the judiciary is between Dr. Manoj Kumar Sharma and Sapana Malla Pradhan. Judge Pradhan may not accept Manoj Kumar Sharma's leadership, and if she proceeds according to her own will, there is a possibility of increased conflict in the judiciary.

Second Scenario

After being appointed as the Chief Justice, there are indications that Sharma may try to pressure Sapana Pradhan Malla, who is currently at the first seniority in the Supreme Court, Judge Kumar Regmi, and Judge Hari Prasad Phuyal to resign. In the current state of dispute, with the presence of these three judges, he may increase pressure for resignation due to the possibility of non-cooperation.

Even if pressure is applied to resign, there is no obstacle for the three judges to work for their entire tenure. Sharma's tenure will be 6 years, i.e., until Jestha 2089, during which time two judges, Pradhan and Regmi, will retire due to the age limit of 65 years. Phuyal, who is in third seniority, still has the possibility of becoming the Chief Justice for three years after Sharma's tenure ends.

Now, Judge Pradhan will move to second seniority. Since a senior judge is also a member of the Judicial Council, with Judge Pradhan remaining in her current position, it may affect decisions regarding judge appointments and other judicial proceedings, which may lead Sharma to increase pressure for resignation.

Third Scenario

The possibility of the three judges based on seniority resigning is extremely low. The senior judges are not obligated to resign simply because Sharma has been appointed as the Chief Justice. In the current situation, there is no obstacle to conducting judicial proceedings without resigning. Primarily, Sharma's focus may be on getting Judge Pradhan to resign. If they do not resign and judicial proceedings continue, Sharma may call a full court of the Supreme Court and arrange for temporary case management and bench allocation by removing the lottery system.

If the Chief Justice allocates the benches, there is a possibility of excluding Judge Pradhan and others. If the lottery system is removed and the Chief Justice allocates the benches, the Chief Justice may get embroiled in controversy. If an attempt is made to remove the system of allocating cases through the lottery system, which started from Mangsir 15, 2078, there is also a risk of a rift between the umbrella organization of lawyers, the Nepal Bar Association, and the judges.

In the past, there is an example of former Chief Justice Cholendra Shumsher Rana refusing to implement the lottery system, leading to a 109-day boycott of the benches by lawyers and fellow judges of the Supreme Court. If Sharma makes such a decision, it cannot be said that the repetition of yesterday will not happen.

Fourth Scenario

Amidst the disputes in the judiciary, the Nepal Bar Association has announced protest programs regarding the recommendation of the Chief Justice and the disputes in the judiciary. If a prolonged tussle occurs between the newly appointed Chief Justice and the senior judges regarding the Chief Justice recommendation and if judicial proceedings are obstructed, the Rastriya Swatantra Party (RSP), which leads the government, may file impeachment motions against the senior judges on various charges, with one-fourth of its MPs.

Constitutionally, an impeachment motion can be filed in two ways. First, a quarter of the members of the Parliament currently in session can register an impeachment motion in Parliament, stating the grounds and reasons for impeachment. In this case, the following reasons must be stated: violation of the constitution and laws, lack of work capacity or misconduct, failure to perform official duties honestly, or serious violation of the code of conduct. Second, any ordinary citizen can file a complaint on the grounds of serious violation of the constitution, lack of work capacity or misconduct, or failure to perform official duties honestly, or serious violation of the code of conduct. If three members of the legislature-parliament certify that such a complaint is admissible, it will be presented to the Impeachment Recommendation Committee.

After investigating such a complaint, if the committee finds sufficient grounds to recommend impeachment, it can submit its recommendation to Parliament. If the Parliament votes in support of the report submitted to it by a quarter of the total members currently in session, it will be sent back to the Impeachment Recommendation Committee for further investigation. If the proposal received through both methods is considered to have initiated proceedings, the person against whom the impeachment is filed will not be able to perform their duties in their position. The committee will provide the accused person a maximum of 7 days to present their defense. Considering the defense provided by the person, the committee may conduct further investigation. In such an investigation, the committee may take statements from the concerned person, search the place and office related to the accusation, take depositions from other individuals, and examine the case file. The committee must submit its report to Parliament within a maximum of 30 days after such investigation.

If Parliament discusses the report and the total members currently in session vote in favor of the impeachment recommendation with a two-thirds majority, the person will be removed from office. The report can also be sent back to the committee with a 7-day period for reconsideration. After the committee investigates and submits it again, Parliament can pass the impeachment recommendation with a two-thirds majority. If the recommendation is passed, the person removed from office can be prosecuted for corruption and other cases according to the prevailing law. Such a person will be barred from holding any public office for life and will not receive any benefits from the state. The person may also be subject to punishment according to the law.