The recommendation made by the Judicial Council (JC) for 80 High Court judges last January was criticised by the civil society and the Nepal Bar Association (NBA) because it had been decided at midnight, two JC members were absent when the decision was made, the candidates had been nominated on the basis of their affiliation with the Nepali Congress, CPN (Maoist Centre) and CPN-UML, and the principle of proportional inclusion stated in the Judicial Council Act and Judicial Service Commission Act had been flouted.

A majority of the nominees are hill high caste males who have been dominating the judiciary for a long time, so how can they be expected to understand the problems of oppressed groups? On November 15, 2016, the Tarai Justice Centre submitted a memorandum to the Judicial Council reminding it to respect the principle of proportional inclusion when naming the High Court judges. The NBA protested against the decision saying that it was procedurally flawed and inconsistent with legal and constitutional principles. On January 31, the NBA reached an agreement with the Supreme Court administration and withdrew its protest programme. Lawyers in the Tarai criticised the pact as it did not mention proportional inclusion.

The Madhesi discontent

Madhesi lawyers were not satisfied with the NBA’s role in the protest against the JC’s decision, and threatened to form a parallel NBA. They said that there were relatives of the NBA chairperson and general secretary among the 80 nominees, so the NBA wasn’t very keen to pursue the protest. On January 30, lawyers of eight Tarai districts discussed the matter extensively and issued a Birgunj Declaration. The declaration said that the JC’s recommendation was unconstitutional and demanded that it be nullified. It also demanded that impeachment proceedings be initiated against ‘incapable’ JC members including the chairperson.

More than 300 lawyers from eight Tarai districts and some Madhesi lawyers based in Kathmandu also staged a protest on the premises of the NBA. On February 10, Tarai lawyers and the NBA reached a seven-point agreement which acknowledged the Birgunj Declaration as being a document of discontent of Tarai lawyers. It also admitted that there were legal and procedural flaws in the appointment of judges and agreed to revise the agreement signed between the Supreme Court and the NBA. Both sides agreed to insert the term ‘proportional inclusion’ in judicial appointment in the NBA-Supreme Court agreement. The NBA also agreed that it would study the allegations of procedural and legal flaws in the judicial appointment and form a committee to work on these issues.

India and UK experience

In India, two committees were set up to give recommendations on proportional inclusion of marginalised communities. The first committee chaired by Member of Parliament Kariya Munda presented its recommendation to the Lok Sabha on March 15, 2000. This report provides sufficient basis for amending the constitution to make reservation for Scheduled Castes and Scheduled Tribes in the High Courts and the Supreme Court. Similarly, the second committee that was led by the then Member of Parliament Sudarsana Natchiappan considered the issue in depth and categorically recommended reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Class in higher tiers of the judiciary.

The UK Judicial Appointment Commission (JAC) has a representative and participative character with a transparent process of selection. Though the selection process is long and complex, it ensures fairness through open competition. Regional representation is ensured in the JAC through the representation of England, Wales and Northern Ireland. The United States Institute of Peace said in its annual report on judicial appointments and judicial independence that around 60 percent of the countries had adopted the system of Judicial Council, and recommended that neither judges nor political leaders should dominate the selection process.

Even JC members and former Supreme Court judges have expressed dissatisfaction with the recommendation. The expression of the law minister and others that a political dividend was ensured is a serious blow to judicial independence. The feeling of Madhesi lawyers that the NBA central office is not in favour of Madhesi lawyers is also a serious challenge in the judicial sector. It is important to ensure fairness in the recommendation of judges and respect the spirit of the law and the constitution. It is equally important for the JC to ensure proportional inclusion in the appointment of judges.

The practice of appointing judges through the JC was considered to be a good example, but as there have always been charges of politicisation and political interference, there must be structural change in it to rectify these anomalies. A better appointment system that can ensure that competent, unbiased, inclusive and capable judges are named is the need of the hour. The judiciary should remain free from all kinds of interference as it plays a crucial role in ensuring checks and balances.

Jha is a practising lawyer