The Judicial Council’s (JC) recent recommendation for the appointment of eight justices to the Supreme Court (SC) has come under fire from the legal sector, with two former Chief Justices, Min Bahadur Rayamajhi and Anup Raj Sharma, openly criticising the recommendation, terming it ‘opaque’ and the ‘worst’ decision in judicial history.

Although two senior advocates, Sushil Panta and Shriprasad Pandit, have come to the defence of the Judicial Council’s recommendations, accusing the Nepal Bar Association (NBA) of ‘greed’ and terming the statement from the two former Chief Justices ‘unethical’, those unhappy with the Council’s recommendations have not relented in their criticism. It is interesting to see mainstream media providing prominent space to the stand taken by the NBA and two former Chief Justices. Since the candidates recommended by the JC will become SC Justices only if the Parliamen-tary Hearing Committee gives approval, the debate has now entered Parliament and Balkhu, CPN-UML headquarters.

The UML, which has some hold in the legal and NGO sector and whose decisions are largely influenced by lawyers and NGO activists, will now have to make its position on the Council’s recommendation very clear. This is a very techno-political issue.

The courts and the UML

One leader associated with the UML has reportedly said that ‘money’ played a big role in recommending names for the SC justices  and even spoke of recalling JC member Khem Narayan Dhungana, who is associated with the UML. But the party itself has a different worry.

The UML has perceived that among the eight judges recommended by the SC, seven are sympathetic to the Nepali Congress (NC). Former SC justice Prakash Wasti, who retired as temporary SC justice but was hopeful of being nominated, is now out of the race.

Despite its stronghold among lawyers, the UML seems to have lost its grip on the SC. Similarly, the NBA is furious with the JC for not recommending any lawyers. It had hoped that some senior NBA office bearers would be nominated for the SC judgeship. Many senior lawyers harbour ambitions to become justices of the apex court. In fact, when Prem Bahadur Khadka was NBA president, the JC even asked the lawyers’ umbrella body to recommend names of lawyers for appointments. It was ethically wrong on the part of the JC to seek names from aspiring lawyers. However, at the last moment, the JC ignored the NBA recommendation.

Ripe for reform

The debate on the JC recommendation, however, is a positive symptom, which will hopefully, and ultimately, lead to debate on the reform of the judiciary. The debate has also raised questions about the structure of the JC, which plays a key role in appointing the country’s judges and monitoring judicial conduct itself. This structure is largely defective. The JC is neither a judicial body nor a political one. It is, in fact, a hybrid of both. Three JC members—two from the NBA and the Law Minister—are political appointees and two SC justices represent the judiciary. With more members from the political sector and fewer members from the judiciary, the JC is likely to be influenced by political power centres. This is a challenge to the independence of the country’s judiciary. Thus, the one or two political parties in power are able to exercise de facto control of the judiciary.

Conflicts of political interest have often led to questionable recommendations where money, political affiliation, nepotism and favouritism have resulted in controversial appointments to the apex court. This ultimately harms the public’s right to justice from competent, impartial justices. It also raises questions on the credibility of the judgement pronounced. For example, when daura suruwal was accepted as the country’s national dress by Justices Prem Sharma and Bharat Bahadur Karki, another Justice, Girish Chandra Lal, registered a note of dissent and the Madhesi parties vehemently protested the decision, calling it biased. Similarly, when then prime minister Manmohan Adhikari dissolved the House of Representatives in 1995, the SC declared the step unconstitutional. The UML subsequently took to the streets to protest the decision. In contrast, the SC had termed PM Girija Prasad Koirala’s decision to dissolve the House of Representatives in 1994 constitutional.

These two controversial decisions and the reactions expressed against them highlight the need to have neutral judges who are free of political and ethnic biases. Depoliticised appointments of judges that also respect the principle of inclusion are necessary to maintain the judiciary’s credibility. In the current JC recommendations, there is not a single woman, Dalit or anyone from the indigenous community. Diversity in the judiciary, the third arm of the government, cannot be ignored. The judiciary too needs to be inclusive, a principle enshrined in the Interim Constitution. Candidates with controversial pasts should also be avoided. Efforts should be made to not give priority to one dominant caste, gender or ethnicity, who are already overrepresented. This is where the JC has failed.  

Furthermore, Nepal is a unique country where seniority is the main criteria for appointment to the Supreme Court. It does not matter whether the judges are incapable, less educated or corrupt. If they are senior and have snowy hair, they are considered suited for appointments to the highest court in the land. Young, well-educated judges are considered junior and incapable for the job. This is one symptom of a feudal society where age, hierarchy, caste and gender matter. Noted columnist CK Lal often claims that the judiciary is the most conservative institution in the nation as it adopts change only after every other institution does so.

The time is ripe to deepen the debate on judicial reform and give more space to the younger generation, where capacity should be the main criteria and not seniority. This positive change could even help stem the brain drain of the young and capable. Only then can the country’s judiciary attract a new generation.

Learning from others

Towards this end, we can draw lessons from countries like the US, where the President nominates judges, who are then endorsed by the Senate, the Upper House of he Parliament. Article II, Section 2 of the US constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court”. SC Justices are appointed for a lifetime and each nomination has a long-lasting influence on the Court with the security of tenure. There have been 158 Presidential nominations between 1789 and 2007, among which 36 failed to win confirmation from the Senate. The Nepali parliamentary hearing committee too can easily rejects the JC’s recommendations with a two-thirds majority. The sovereign Parliament can adjust the balance of power accordingly.

Similarly, in India, the Collegium system, which consists of five senior judges from the SC and is currently headed by Chief Justice RM Lodha, decides on the appointments of judges to higher courts. The 1993 case Supreme Court Advocates-on Record Association v Union of India introduced the Collegium system of appointment. As per the case, “the opinion given by the Chief justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court.” The Indian SC, in January 2013, in the case of Surz India Trust v Union of India, rejected a plea to revise the 1993 judgment and abolish the Collegium system, citing technical reasons. Recently, on May 3, the Indian SC Collegium met to finalise the names for the elevation of judges to the Apex Court, which shows that the present system is working well in India.

Considering these examples, Nepal must decide on the executive’s primary role in appointing judges—whether the country should instead opt for a system where SC Justices play the main role in appointments. To avoid conflicts of interest between various lobby groups, we need to choose one system—dominated by either the judiciary or the executive. If we can find a third alternative, where we can do away with the vices of both systems, so much the better.

Jha is an advocate at the Supreme Court