Rudderless top courtThe judiciary is not a matter to be sidelined, bargained for, or made a pawn of political powers.
The Supreme Court of Nepal has been headless for a year now, and nobody seems to be in a hurry to give it fullness. The impeachment motion registered on February 13 last year against Cholendra Shumsher Rana led to his automatic suspension, vacating the position of Chief Justice. As there is no provision of appointing a new Chief Justice until the motion reaches a logical conclusion, the top court was led by Deep Kumar Karki, the senior-most justice at the time, until October 1 last year. When he retired, Karki was succeeded by the current Acting Chief Justice, Hari Krishna Karki. In the meantime, Rana retired on December 13 due to age limit, and the top court continues to be led by Karki.
While the daily function of the Supreme Court is not impeded by the absence of its head, it certainly loses its authoritative voice and moral legitimacy. The failure to assert its power ultimately leads to a dissonance between the idea and functioning of justice, which does not bode well for our constitution and democracy. The Acting Chief Justice is expected to fulfill the duties of the Chief Justice as a temporary arrangement; however, in contemporary Nepal, it is as if those in power have no problem envisioning an Acting CJ as a permanent replacement of the Chief Justice. Moreover, in the absence of a Chief Justice, the judiciary fears to take bold decisions, as the Acting Chief Justice lacks the former’s moral authority.
As per Article 284 (3) of the constitution, the Constitutional Council should recommend a new Chief Justice a month before the incumbent is to retire. In the run up to the November elections, this provision could not be followed on procedural grounds in the absence of crucial council members including Speaker, Deputy Speaker and leader of the opposition. However, the council is now complete but for the confusion regarding the leader of the opposition, and there is no reason why it should not work towards recommending a new Chief Justice. And yet, the council seems to be in no mood to do so. The committee for parliamentary hearing is yet to be constituted as well. This failure has also resulted in the delay in the appointment of three Supreme Court justices who have already been recommended.
Going by the tussles between major political parties in the run up to the presidential elections, it is not difficult to understand that some members of the Constitutional Council, not least the prime minister, have other businesses to deal with at the moment. However, the judiciary is not a matter to be sidelined, bargained for, or made a pawn of political powers. The Supreme Court itself has become the eye of a political storm in the recent past, be it through its judgements or the activities of justices, including the Chief Justice himself. In such a scenario, the most natural thing would be to appoint a new Chief Justice so that people's trust in the impartiality and authority of the judiciary does not further erode. The Supreme Court, as the supreme arbiter of the constitution and a major state organ, cannot be allowed to remain headless due to the lethargy and self-serving interests of a few.