2-8 May 2014 #705

Justifying the justices

The Judicial Council and the Law Minister have come under fire for their Supreme Court nominations
Binita Dahal

After a three-year delay, the Judicial Council finally recommended eight names for positions in the Supreme Court last week, and immediately plunged into a huge row over its choice of disputed figures.

The Judicial Council led by Chief Justice Damodar Prasad Sharma, included Law Minister Narahari Acharya, Justice Ram Kumar Prasad Shah, and two lawyers Upendra Keshari Neupane and Khem Narayan Dhungana. All had reportedly pushed their own candidates for the vacant positions in the Supreme Court.

The appointment of the controversial judges have raised questions of accountability of the Judicial Council itself, with blistering attacks from the Nepal Bar Association, the second largest party in parliament the UML, former chief justices, and the legal community at large.

Analysts have pointed out that at a time when the performance of the executive and the legislature leave much to be desired during the constitution-writing process, the role of an independent judiciary becomes even more important. However, they say, the new appointments will raise questions about the integrity and independence of the Supreme Court itself.

Former Chief Justices Min Bahadur Rayamajhi and Anup Raj Sharma have been sharply critical of the appointments, questioning the motives of the Judicial Council in bypassing temporary justices of the Supreme Court, who have been at their jobs for the last five years and distinguished themselves with some landmark rulings.

One of the judges from the Appellate Court recommended by the Judicial Council is Cholendra Samsher Rana, who was named for action by three divisional benches, including one of former Chief Justice Khil Raj Regmi. Rana was accused of giving a clean chit to many corrupt figures when he was in the Supreme Court.

The choice of Gopal Prasad Parajuli, Jagadish Sharma Poudel and other judges over serving temporary Supreme Court justices who have performed well in the past three to five years has raised eye brows. Temporary justices bypassed by the Judicial Council were endorsed twice in past parliamentary hearings.

And while there are two vacant posts remaining for permanent and almost ten posts for temporary justices, the Judicial Council has recommended only eight career judges. The remaining two permanent posts have apparently been left vacant for two members recommended by the then Nepali Congress-led Nepal Bar Association and the Jhalanath Khanal cabinet respectively.

Initially, the Judicial Council had asked Nepal Bar Association and Legal Department to recommend ten and five figures respectively to be justices. In the end, the Judicial Council ignored those names and chose controversial career judges, paving the way for them to be ultimately named Chief Justice.

The Judicial Council has been embroiled in controversy in the past for appointing justices with political affiliations. There was an infamous case two years ago of some judges appointed to the appellate court immediately going to the UML headquarters to thank party leaders.

The recent retirement of five temporary Supreme Court justices left only five serving justices including the Chief Justice resulting in a massive backlog of 17,000 cases.

Chief Justice Sharma and other members of the Judicial Council are under heavy pressure to clarify the criteria for their appointments. The controversy means that the ratification of the nominations by parliament will also run into trouble.

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