In an unprecedented move, the Parliamentary Hearing Committee (PHC) on Friday rejected the nomination of Deepak Raj Joshee as the chief justice of the Supreme Court with a two-thirds majority. This is the first time any nominee for the top judiciary post did not survive hearing since the practice was initiated in 2007.

The PHC meeting boycotted by Nepali Congress lawmakers rejected the recommendation through a vote after rounds of negotiations to take a consensus decision had failed. Opposition members of the committee, who were lobbying for Joshee, boycotted the meeting after its coordinator Laxman Lal Karna agreed to put the motion to a vote. Ten members from the ruling parties—nine from the Nepal Communist Party (NCP) and one from the Sanghiya Samajbadi Forum-Nepal—voted against Joshee’s recommendation while there was no vote in his favour.

The Federal Parliament Joint Meeting and Joint Committee (Operation) Regulations, which guides the PHC’s business, says that a two-thirds majority of the 15-member committee can reject the recommendation. The Constitutional Council led by Prime Minister KP Sharma Oli on June 12 recommended Acting CJ Joshee to head the judiciary. The PHC on July 26 conducted Joshee’s hearing but had failed to take a decision as the panellists from the ruling and opposition parties remained sharply divided over whether to endorse him as the new CJ. Six meetings held after the hearing had failed to reach a conclusion, prompting coordinator Karna to take a decision through vote.

The NCP gave five reasons for rejecting Joshee. Yogesh Bhattarai, NCP member on the PHC, said Joshee had failed to give convincing answers to the issue of his integrity, work efficiency and behaviour. He was able neither to present proof to verify his questionable academic credentials nor to submit a concrete plan on how he would lead the judiciary effectively. He was accused of taking hearing as granted and briefing the PHC as “an Army general does to his personnel”.

Several questions were raised over Joshee’s grade 10 certificate and his ruling in various cases. However, he failed to convince the hearing committee that accusations against him were false. “We concluded that Joshee is unfit to lead the Judiciary,” Bhattarai told journalists.

The NC, however, has a different take. The opposition party claimed that since the Constitutional Council (CC) recommended his name deeming him qualified to lead the SC, it was illogical for the hearing committee to reject the name “without valid reasons” for it.

Constitutional expert Bipin Adhikari said the Federal Law had to be in place as provisioned by the constitution before the PHC took any decision on the nominee. Parliamentary regulations alone were not enough to reach such a crucial decision, he added.

What next?

Since the PHC only disqualified Joshee as the CJ, he can, if he wishes, continue in office as the acting CJ until somebody else replaces him, say legal experts. The Judicial Council on March 28 recommended three names for the CJ—Joshee, Om Prakash Mishra and Cholendra Shumsher Rana. Advocate Tika Ram Bhattarai claimed that there was no constitutional bar for Joshee to continue as justice until his retirement age. But he faces moral questions to continue while there are serious charges against him from controversial rulings and dubious certificates to the lack of capacity.

“It’s up to him [Joshee] to choose a graceful exit or continue as a justice while he has failed to falsify the charges against him,” Bhattarai told the Post. The Constitutional Council was now free to pick one of Mishra or Rana for the post. Asked if it was a moral question for Parliament to bar him from continuing as justice in the face of the allegations, Bhattarai said: “I believe Joshee will opt for a graceful exit by resigning. He would definitely not want to be impeached.”

Adhikari said there would not have been so such complexity had the federal law been in place. The legislation is expected to define future steps for an official rejected by the PHC.

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