By Binod Ghimire in The Kathmandu Post, Nov 22, 2023
The writer covers parliamentary affairs and human rights for The Kathmandu Post.
The Judicial Council has finally nominated justices for six of the seven long-vacant positions at the Supreme Court.
A meeting of the council led by Chief Justice Bishowambhar Prasad Shrestha on Tuesday picked four candidates from among high court career judges and two practising lawyers. The council has ditched the hierarchical norm in nominating high court judges to the top court.
Sidelining Nripa Dhwoj Niroula, the seniormost high court judge, the council recommended Sharanga Subedi, Adbul Ajij Musalman, Mahesh Sharma Poudel and Tek Prasad Dhungana, all high court judges, for the vacant Supreme Court positions.
Dhungana made it to the list despite being ranked 15th in the high court hierarchy. Judges like Ratna Bahadur Bagchand, Satya Mohan Joshi Tharu and Madhav Prasad Pokharel were ahead of Dhungana and Poudel in the ranking.
“Dhungana was picked to ensure that the Supreme Court gets chief justice from career judges,” a senior official at the council told the Post.
Senior advocates Sunil Pokharel and Bal Krishna Dhakal were nominated from the lawyers’ quota. Pokharel, a former general secretary of the Nepal Bar Association, is regarded as close to the ruling Nepali Congress. Dhakal, on the other hand, has close ties to the main opposition CPN-UML.
Shrestha, along with Justice Ishwar Prasad Khatiwada, who also is a council member as the senior-most justice, wanted to make the nominations in a way that ensured that a career judge became the chief justice. After Shrestha’s retirement, the judiciary will be in the hands of the chief justices who were appointed directly from among the lawyers for over a decade.
Justice Prakash Man Singh Raut, who was appointed the Supreme Court justice in 2016 from among lawyers, will lead the judiciary until March 2026 after Shrestha retires in October next year.
Officials at the council say there was pressure to make the appointments to prevent justices appointed from among lawyers from becoming chief justice.
Justice Sapana Malla Pradhan will succeed Raut, followed by Justice Kumar Regmi and Justice Hari Phuyal. All three had joined the Supreme Court as lawyers. Phuyal will retire in October 2035.
Justice Nahakul Subedi will lead the judiciary after Phuyal. Dhungana will replace him in June 2036.
“The council will send the list of nominees to the Parliament Secretariat for the hearing,” Man Bahadur Karki, the spokesman for the council, told the Post. The nominees must pass parliamentary hearings before being appointed.
The Parliamentary Hearing Committee, after receiving the list of nominees, will solicit complaints from the public against them. It will then hold meetings with the complainants before questioning the nominees. The nominees will be appointed after getting clearance from the hearing committee. The entire process will take at least three weeks.
It took several meetings over months to recommend justices for the Supreme Court, which has been short-staffed for a long time. Yet the council couldn’t fully fill the vacant positions. Though Pokharel and Dhakal got appointed from the Congress and the UML quotas, there was no recommendation from the CPN (Maoist Centre) quota due to differences among council members.
The Maoist Centre has been lobbying for Din Mani Pokharel, who is currently serving as the attorney general, but Shrestha and Khatiwada didn’t agree on his name, according to officials privy to the development.
Pokharel, if appointed, will become chief justice after Dhungana. The officials say if not Din Mani, DN Parajuli, dean at Nepal Law Campus who was recommended for justice in the past, will possibly become the justice from the Maoist Centre’s quota.
For over two years, the court, which has 21 justice positions including the chief justice, never had all positions filled. Some positions have been vacant for over two years now. Among the existing 14 justices, Ishwar Prasad Khatiwada retires in March after reaching the age 65.
Only two justices have been added to the top court since March last year. Binod Sharma, a high court judge, has been promoted to the Supreme Court. Absence of justices has severely affected the performance of the top court. Hearings are being conducted in seven or eight benches daily while the court would have 12-13 benches when it had all 21 justices.
In addition to recommending justices, the council also has appointed chief judges in six high courts. Niroula was only chief judge while the other six high courts were led by acting chief judges for over two years. Lohit Chandra Shah has been appointed chief judge of Surkhet High Court, Madhav Prasad Pokharel of Pokhara, Ramesh Prasad Rajbhandari of Biratnagar, Shree Kanta Poudel at Janakpur, Nitya Nanda Pandey at Tulsipur while Shanti Singh Thapa has become the chief judge at Dipayal High Court.
https://kathmandupost.com/national/2023/11/22/council-ignores-hierarchy-as-it-picks-six-supreme-court-justices
