Nomination issues

The nomination of judges by the JC raised numerous red-flags over certain individuals. The Nepal Bar Association, for instance, urged the Parliament Hearing Special Committee (PHSC) to hold members of the JC accountable for recommending some ‘controversial’ judges for the post of permanent Supreme Court justices. Then, a controversy landed during zero hour of Parliament on the question of judicial independence, which might have been compromised by the nomination of those with tainted images. Yet, the members of the JC did not budge. Rather, one of its members accused the Parliament of hatching conspiracies to drag the JC into controversy.      

The JC expressed its objection to the PHSC’s call for its members to attend a parliamentary hearing. A single Supreme Court bench ruled that JC members did not need to appear before the PHSC to clarify the nomination because neither the constitution nor the Parliamentary Proceeding Rules provide authority to the PHSC to summon JC members. All of this suggests that the PHSC should endorse the nomination without scrutiny.  

Law experts, who have appeared as petitioner at the court and as guest interviewees at media programmes, have claimed that the PHSC should respect and endorse the JC’s nomination without question. They have also argued that giving the parliamentary committee the right to summon judges could undermine the justice delivery process and that no parliamentary system in the world holds a parliamentary hearing in such cases. This also implies that a parliamentary hearing is not necessary for the nomination of the judges.

International practices

But here is how Supreme Court judges are appointed under parliamentary or presidential governments under the federal or unitary system in different nations:

In Australia (Federal Parliamentary), Supreme Court judges are appointed by the executive head of the government without intervention from the existing judiciary. Once the judges are appointed, they have tenure and there are certain restrictions on their removal from office. For example, a federal judge may not be removed from office except by the Governor-General upon an address of both Houses of Parliament for proved misbehaviour.

In Canada (Federal Parliam-entary), justices of the Supreme Court are appointed by the Governor-General-in-Council based on the advice of the Queen’s Privy Council for Canada with advice from the Cabinet, a standing committee in the larger council, through a consultation with the PM.

In Japan (Unitary Parliamentary), the Chief Justice is chosen by the Cabinet (Prime Minister) and appointed by the Emperor. Associate Justices are appointed by the Cabinet and attested by the Emperor.  After the appointment, Supreme Court justices are subject to a ‘people’s review’: an automatic retention referendum in which voters may remove judges from office at the election to the House of Representatives.

In Germany (Federal Chancellorship), justices are elected by the Bundestag and the Bundesrat. Each of these bodies (Upper and Lower House) selects four members from each senate, while the authority to select the court’s president alternates between them. The selection of a judge requires a two-thirds vote.

In France (Federal Presidential), judges are considered civil servants exercising one of the sovereign powers of the state. France’s independent judiciary enjoys special statutory protection from the executive branch. Judicial appointments must be approved by a special panel—the High Council of the Judiciary, which is made up of other judges from the receiving court.

In India (Federal Parliam-entary), judges of the Supreme Court are appointed subsequent to rulings in the three ‘judges cases’ (1982, 1993, 1998). The President is required to appoint judges who have been chosen by the Supreme Court’s collegiums—a closed group consisting of the Chief Justice of India and the four senior-most associate judges. The position of Chief Justice of India is attained on the basis of seniority amongst the judges serving at the court.

In the United States (Federal Presidential), Supreme Court justices are appointed by the President, which must be confirmed by the United States’ Senate (which consist of two elected senators from each state for six years). The Senate confirmation is done following a series of hearings where both the nominees and witnesses make statements and answer questions before the Senate Judiciary Committee (composed only of senators).  

A new direction

Looking over these international practices, it is clear that the standard method of appointment of Supreme Court judges under the federal system (either parliamentary or presidential form of government) is by nomination from the executive head of government as per the recommendation of the Cabinet and ‘parliamentary confirmation hearing proceedings’ to complete the appointment. Each state under federalism follows similar proceedings for the State Supreme Courts and district courts appointments.

In most federal nations, the JC as such does not exist but there are bodies with Supreme Court justices as members that appoint new justices. But it is the responsibility of the executive head of government to appoint Supreme Court justices as per the recommendation of the Cabinet or the selection council, composed of elected representatives. However, such a council should not include members of the judiciary, unless they are considered civil servants exercising one of the sovereign powers of the state, like in France and India. Nepal’s JC includes elected members of the state, as in the Law Minister, but it also includes members of the judiciary—who are not considered civil servants—and hence, is prone to controversy. It would be best for the new constitution to take international practices into account and set a new direction for the judiciary by keeping in mind transparency and independence.    

Bom is associated with the Non-Resident Nepali Association, New York, US