Supreme Court Seniority Questioned After New Chief Justice Appointment

Kathmandu. After Dr. Manoj Kumar Sharma assumed office as the Chief Justice at the Supreme Court, questions have arisen about who the senior-most judge is after him. After Sharma took office at the Supreme Court on Tuesday, the Judicial Council had placed the name of Sapana Malla Pradhan as the senior-most judge on its website on Wednesday. However, from Thursday, the Judicial Council removed Pradhan's name and left it blank.

Regarding the question of why Pradhan's name was removed after being placed as the senior-most judge for one day, Judicial Council Information Officer Kuber Pandey stated that the name was removed because clear information had not been received. "We will place the name only after receiving clear information from the Chief Justice about who the senior-most judge is," Pandey told Ratopati.

In the past, when the Chief Justice was appointed based on seniority, the judge after him would become the senior-most judge. However, this time, the Constitutional Council bypassed seniority and recommended Sharma, who was in the fourth order of seniority, as the Chief Justice, raising the question of who the senior-most judge of the Supreme Court is.

Although the constitution and prevailing laws provide for the senior-most judge, it is not mentioned anywhere in the constitution or laws as to who among the Supreme Court judges is the 'senior-most'. The senior-most judge of the Supreme Court is a member of the Judicial Council and a member of the Judicial Service Commission.

The constitution requires three years of experience working as a Supreme Court judge to become the Chief Justice. However, since there is no clear provision regarding the qualifications for the senior-most judge, the question has arisen as to who will be designated as the senior-most judge.

Article 153 of the Constitution of Nepal provides for a Judicial Council headed by the Chief Justice to recommend and consult on matters related to the transfer, appointment, disciplinary action, dismissal of judges, and judicial administration. The senior-most judge of the Supreme Court is a member of this council. Article 154 of the constitution provides for the Judicial Service Commission. This commission, also headed by the Chief Justice, has the senior-most judge of the Supreme Court as a member. The Judicial Council Act 2073, the Judicial Administration Act 2073, and the Judicial Council Regulations 2074 do not define the senior-most judge.

Before Sharma became Chief Justice, judges Sapana Malla Pradhan, Kumar Regmi, and Hari Prasad Fuayal were above him. After Sharma was Judge Nahakul Subedi. If the judge below the Chief Justice in seniority is to be considered the senior-most judge, then Subedi would have to be appointed as a member of the Judicial Council and Judicial Service Commission. If seniority is given recognition, then Sapana Malla Pradhan would be number one, followed by judges Kumar Regmi and Hari Prasad Fuayal. It has become certain that Chief Justice Sharma will not give the position of senior-most judge to Sapana Malla Pradhan, who previously served as acting Chief Justice. This is because Pradhan's name was placed on the Judicial Council and Judicial Service Commission last Wednesday and removed by Wednesday evening.

Sharma does not want to appoint judges Regmi and Fuayal as senior-most judges and wants to appoint Sharma Subedi as the senior-most judge. If three senior-most judges are appointed, it is unlikely that they will be in the minority in the Judicial Council and be able to make decisions favorable to them in judge appointments. The appointment of Sharma, who was in the fourth order of seniority, as Chief Justice by the Constitutional Council also suggests that the judge below him in seniority, Dr. Nahakul Subedi, could become the senior-most judge.