20-26 January 2017 #842

Separating powers

Judicial Council nominations of judges are always controversial, this year was no different
Binita Dahal
Gopen Rai

Every time the Judicial Council nominates judges, its members are usually criticised for being partisan. They are accused of violating the doctrine of separation of powers by politicising appointments to the judiciary.

In today’s bhagbanda politics in which the parties divide up every appointment among themselves, the controversy is a given. Last Thursday, the Council finalised the nominations in a late-night decision by the majority after the two members left the Chief Justice residence in Baluwatar. 

Among the 80 recommended judges, the Council decided on 37 judges from the district courts, 27 advocates and 16 joint secretaries and special class legal officials from the Attorney General’s office. The appointments come amidst a huge backlog of pending cases in the High Courts and their extended benches. 

The Nepal Bar Association (NBA) and other Tarai-based organisations and government lawyers from the AG office expressed their displeasure at the list, accusing the Council of not following the principle of proportional representation. They threatened to pull out from the NBA if the decision was not rescinded.

Despite the opposition, the newly appointed 80 judges took their oaths of office under a tent in the Supreme Court premises on Wednesday (above).

The decision would not have been criticised to this extent if the two members of Judicial Council, Baidya Nath Upadhyay and Ram Prasad Sitaula had not left the meeting in a huff. Their displeasure is centred, as before, mostly on the perceived politicisation of the appointments and on nepotism. 

Some of the newly-appointed judges are indeed close relatives of the members of the Council and some are affliated to the three main political parties. 

However, looking back at previous selections of the Judicial Council, it would be fair to say that they are never above controversy. The most recent was the appointment of 11 justices of the Supreme Court by the Council led then by Kalyan Shrestha, a Chief Justice known for his integrity and fair judgement. 

Much more controversial was the Judicial Council’s decision three years ago to appoint eight justices to the Supreme Court. Three of them are now next in line to be Chief Justices when Sushila Karki steps down in April. 

Senior Nepali Congress leader Narahari Acharya was among the Council members involved, and he had fiercely defended the disputed nominees. That decision was controversial because all nominations were from among career judges, excluding some well-deserved professional lawyers, the Attorney General’s Office, Law and the judicial administration. 

The Judicial Council is lead by the Chief Justice, and includes the Law Minister, senior justices of the Supreme Court, one lawyer recommended by the Prime Minister and the other by the NBA. Of the five members, three already have partisan interests because of their positions. It would be really difficult to find lawyers without political affiliations.

This time, after Upadhay and Sitaula left the meeting, Law Minister Ajay Shankar Nayak and Padam Baidik (both from the Maoist party) were in the majority in the Council. Even so, the appointees cover nearly all sectors including government attorneys, lawyers, civil servants and judges from district courts. Those nominated from the judicial administration and Law Ministry are also experienced.  

To make the decision inclusive, some less deserving candidates are also in the selection and lack experience to be High Court judges. This is why sitting judges in the districts are dissatisfied with the system wherein novice lawyers become more senior to them just because the process needs to be inclusive. 

Even so, the Judicial Council’s selection this time is comparatively less controversial. In future, the makeup of the Council itself should be changed with a majority from the Judiciary. However, it will be difficult to reduce the political influence in the judiciary, as it is in every sphere of national life today.  

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Bhagbanda Politics, Editorial

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