The Constitution of Nepal has envisioned three distinct and independent branches of government - the legislative, the executive, and the judiciary. Among them, the judiciary is to be apolitical and unbiased, acting as the ultimate protector of justice and the rule of law. However, this foundational principle has been systematically undermined, with the judiciary now being enmeshed in political machinations that have compromised its independence and credibility, thanks to the ever-growing political interference.
The situation today, those in the know say, has worsened to such an extent that justices of even the Supreme Court are referred to as belonging to one or the other political party. In the eyes of the legal and constitutional experts who Republica talked to, such judges are not non-partisan and that has affected the process of justice delivery in Nepal.
"In the name of delivering justice, actions are being taken that cast a shadow even in broad daylight. If a movement like those in Sri Lanka or Bangladesh were to occur in Nepal, the protesters, it seems, may target the judiciary first," says Senior Advocate, Dhruba Lal Shrestha. Shrestha who leads the Satya Ra Nyayako Khoji Abhiyan (campaign to search for truth and justice) has been closely observing the judiciary since the days of the Panchayat system.
Photo : Dhruba Lal Shrestha, Senior Advocate
In their conversations with Republica, several senior advocates and former judges agreed that, initially, the Judicial Council – the new structure introduced by the Constitution of 1990 for judicial appointments - functioned effectively, with judiciary members holding a majority. Although the law allowed for majority-based decisions, almost all decisions were consensus-driven.
Senior Advocate Tikaram Bhattarai says after the 1990 Constitution, the Judicial Council faced a radical departure from the earlier practices and global democratic norms. Earlier, the king, in the capacity of the head-of-state, appointed Supreme Court justices on the recommendation of the Chief Justice, while the Chief Justice independently selected lower court judges. This placed the entire burden of appointments—success or failure—on the Chief Justice.
“In 1990, with the monarchy becoming constitutional, it was argued that the burden of success or failure of judicial appointments could no longer be put on the King. Similarly, the dual role of the Chief Justice - administrative and judicial head of the judiciary - required a shared responsibility,” says Bhattarai. Thus, the Judicial Council came into being, comprising the Chief Justice, two senior Supreme Court justices, the law minister, and a legal expert nominated by the king on the recommendation of the Prime Minister—a five-member body led by the Chief Justice designed to decentralize power.
While early appointments under this system were satisfactory, controversies soon began to surface. The political affiliations and disgraceful exits of Chief Justices Cholendra SJB Rana, Deepak Raj Joshi, and Gopal Parajuli, who were appointed to the judiciary after 1990, exposed the interference in their appointments. For example, an impeachment motion was registered in parliament against Rana while the appointment of Joshi had to be made by bending the rules because of political pressure, while Parajuli was embroiled in a scandal over forged academic credentials.
Controversies from the start
The Judicial Council which was envisioned by the 1990 Constitution was soon off to a rocky start. Under the new structural changes made for judicial appointments, even the reputed Chief Justice Biswanath Upadhyay, believed to be the main architect of the 1990 Constitution, could not keep himself above political influences on judicial appointments. The appointment of 68 judges by Upadhyay in 2048 BS after the promulgation of theConstitution of 1990 was an example of this. Complaints arose that the thenGirija Prasad Koirala-led Nepali Congress government had recruited party-leaning folks and that names had been drawn from the pockets of Judicial Council members and presented at meetings.
Bishwanath Upadhyay was also accused of promoting his younger brother, KedarnathUpadhyay, to the Supreme Court by superseding Krishna Jung Rayamajhi, who was not only his senior but also highly capable.
“Bishwanath arranged for Kedarnath's promotion by manipulating the seniority list, placing Kedarnath as senior to Rayamajhi. This move proved highly contentious, paving the way for Kedarnath's eventual elevation to Chief Justice, and Rayamajhi immediately resigned in protest,” says Senior Advocate Bhattarai. "I am senior to him, so I cannot accept him as the Chief Justice," Rayamajhi had said before tendering his resignation, according to Bhattarai. Balkrishna Neupane, another senior advocate, recalls the incident as ‘hitting a boulder at the very first bite’.
More controversy came when there was a move to place a third Upadhyay brother, Baidya Nath Upadhyay, as Chief Justice, but that move floundered in the face of widespread opposition.
Judiciary in Jeopardy after 1990
During his conversation with Republica recently, Senior Advocate Neupane recounted an interesting incident that speaks volumes about the independence of the judiciary in the Panchayat system. “There was a Chief Justice named RatnaBahadurBista around 2018 BS. One day, CJ Bista was supposed to give his verdict on a case against the father-in-law of King Mahendra, who was an absolute monarch. A division bench had already given a verdict against the King’s father-in-law and the case had reached the Chief Justice-led bench. As he got ready for the court that day, CJ Bista’s wife said, ‘You have to decide a case relating to the King’s father-in-law today. If you pronounce a verdict against the King’s father-in-law, you will surely lose your job. So, be mindful.’”
Neupane continued, “Later, in the evening, when CJ Bista returned to their rented room, his wife asked, ‘What verdict did you give in the King’s father-in-law’s case?’ The CJ Bista replied, ‘My conscience did not allow me to issue a verdict in favor of the King’s father-in-law. So, I upheld the division bench’s decision.’ Upon hearing this, Bista’s wife said, ‘Now you are finished!’”
Photo: Bal Krishna Neupane, Senior Advocate
According to Neupane, CJ Bista was summoned to the royal palace the very next day by King Mahendra, who, to Bista’s surprise, said, “Thank you CJ. You proved that the judiciary in Nepal is really independent!”
“Before Bista left the royal palace, King Mahendra handed him a book, saying, ‘This is a good book I have finished reading. I think, you too should read it.’”
Neupane continued, “When CJ Bista reached home, he was again surprised to find an envelope inside the book. The envelope contained some 15-20 thousand rupees. Bista went to the royal palace again and said to the King that an envelope with some cash had been accidently placed inside the book and that he had come to return that. Then the King said, ‘Keep that cash, CJ. That’s a reward for upholding the notion of justice!’”
“Before the advent of the multiparty system in Nepal, the judiciary wasn’t like this. Even during the monarchy, the judiciary wasn’t like this. Back then, we couldn’t even raise our heads to look at the judges; their personalities were so formidable, and they carried such gravitas. Courts would deliver justice back in those days,” recalls Senior Advocate Shrestha. According to Shrestha, later, after the 1990 political change, as the judicial system underwent changes through 1990 and then up to 2008, the judiciary became subject to political appointments.
Shrestha argues that having a political ideology isn’t inherently bad, but along with that ideology, one must have the caliber, qualifications, and character necessary for the position. “The suitability of the individual for the role should have been evaluated. But none of that was considered. Instead, the political leaders – whether communist or from Congress – only looked at who carried their bags or supported them, and appointed those individuals and judges. As a result, the judiciary became increasingly politicized and controversial.”
This trend continued during the tenure of Chief Justice Damodar Sharma. Among the appointments made during Sharma’s term, a number of newly appointed judges dressed in daura-suruwal, coat, and topi walked on foot a good distance to reach Balkhu (then the headquarters of the UML party) and “bowed before their leader.” They had to walk all the way to Balkhu because there was a banda (strike) that day. Photos of this incident even appeared in the media. At that time, Jhala Nath Khanal was the general secretary of the UML. Legal eagles say this was a blatantly appalling case of career judges and senior advocates seeking the favor of politicians for appointments, and visiting their offices in a group to thank them for their nominations.
“This was an assault on the very roots of judicial integrity, with the appointment process becoming a farce of political patronage rather than a stringent test of merit and ability. This controversy persisted,” observes Senior Advocate Neupane.
Lets talk about suicide!!
Another major dispute arose during the tenure of Chief Justice KalyanShrestha. Article 153 of the Constitution provides for the formation of the Judicial Council, whose recommendations are the sole basis for appointing judges to the Supreme Court and other courts. As per Article 153 of the Constitution, the Judicial Council was not fully constituted; it was still in the process of being formed. The legal expert who was supposed to be appointed to the Judicial Council by the Prime Minister had not yet been appointed. Similarly, the representative to be sent by the NBA had not been sent, either. At that time, there were only three ex-officio members in the Judicial Council - the then Law Minister Agni Kharel, Chief Justice Kalyan Shrestha, and Sushila Karki, the senior-most justice of the Supreme Court. Chief Justice Shrestha had only a few weeks left in his tenure.
“Then they orchestrated a scheme. Agni Kharel was the law minister. He wanted to appoint Hari Krishna Karki, his law firm partner, as a Supreme Court justice. Similarly, Kalyan insisted on appointing a certain person. I believe Kharel was the mastermind behind all of this,” said a senior advocate on condition of anonymity.
The ‘incomplete three-member Judicial Council’ on March 1, 2016, nominated 11 new justices for the Supreme Court. The recommended justices were Sarada Prasad Ghimire, Dipak Karki, Kedar Chalise, Hari Krishna Karki, Ishwar Khatiwada, Bishwambhar Shrestha, Meera Khadka, Anand Mohan Bhattarai, Anil Kumar Sinha, Prakash Raut (the current Chief Justice), and Sapana Pradhan Malla. Among these 11 nominees, seven were the sitting chief judges of appellate courts and four senior advocates - Hari Krishna Karki, Prakash Raut, Anil Kumar Sinha and Sapana Pradhan Malla.
The 11-justice list by the Judicial Council, “clearly dictated by vested interests”, was indicative of this degeneration. Even as it included two women, two Newars, and a Madheshi, the appointments did not come anywhere near the threshold of inclusion enshrined in the new constitution. The non-representation of academia, civil service, and the Attorney General's office, besides senior advocates from outside Kathmandu, underlined how narrow and politically skewed the selections were.
“When I found out about this — I was outside of the country at the time — I wrote articles saying, ‘This is a takeover of the court, this is an illegal act, and doesn’t align with the law.’ But nobody spoke up. This was a very serious issue,” says Senior Advocate Shrestha. “That's why I refer to those 11 justices, some of whom have become the Chief Justice, as unconstitutional and illegitimate justices, although as an advocate, it’s a compulsion for me to argue my cases before them,” asserts Shrestha.
Legal eagles watching the developments closely say that the then leader of the main opposition party, the Nepali Congress, Sher Bahadur Deuba, could have stopped those nominations. “But they had a formula for taking Deuba into confidence - by appointing his dummy. Sher Bahadur was somehow misled into believing that his two representatives had already reached the Supreme Court. He then gave the go ahead. He did not stop something that had to be stopped,” laments Senior Advocate Shrestha.
What made this “betrayal of judicial impartiality” even more disheartening is that it had come during the tenure of the then CJ Kalyan Shrestha, a man once hailed for his integrity and professionalism. Shrestha assumed his office at a time when the Supreme Court was suffering from a depleted reputation, handed down by his predecessors Damodar Prasad Sharma and Ram Kumar Prasad Sah, who faced valid accusations of eroding public trust in the judiciary by appointing his own unqualified daughter as a judge.The Bar and Bench had pinned their hopes on Chief Justice Shrestha to restore the court’s credibility. Instead, he succumbed to the same political pressures that had plagued his predecessors.
The list of 11 justices for the apex court was returned by the then Speaker Onasari Gharti on March 6 citing the absence of the Parliamentary Hearing Special Committee. The Speaker had argued that the recommendations were erroneous because they were made by a council that was still in the process of being formed.
Arguing that the Speaker’s decision had affected service seekers by blocking the appointment of the 11 justices, Advocate Jyoti Baniya had progressed to move the court. A single bench of Justice Jagadish Sharma Poudel then ordered the Speaker not to implement her decision, besides ruling that the three-member council was sufficient for recommendation. However, the 11 justices were appointed after five months of recommendation when the parliamentary hearing committee was eventually formed.
On March 20, 2016, a single bench of Justice Jagadish Sharma Paudel of the Supreme Court quashed a writ petition filed against the Judicial Council’s decision to nominate 11 Supreme Court justices. Advocate Bijay Singh Sijapati had filed the petition saying that the decision to nominate 11 new SC justices was taken by the JC when it was an incomplete body. Sijapati had stated in the petition that since there were only three ex-officio members in the JC, who took the decision to nominate 11 new SC Justices, it was against the spirit of the law. Advocate Sijapati had also argued that as per the new constitution, new justices of the Supreme Court should be appointed from among the high court judges but the JC had nominated justices from among the judges of the appellate courts as high courts had not been formed yet.
The Supreme Court on October 15, 2017, upheld its earlier decision to scrap the writ petition filed against the appointment of 11 justices. A single bench of Justice Om Prakash Mishra endorsed the decision. The verdict effectively thwarted any overtures to oust the 11 SC justices appointed during the government led by KP Sharma Oli.
‘Midnight Judges’
A late night Judicial Council’s decision on January 12, 2017 to recommend 80 judges for seven high courts and their extended branches met with severe criticism, with charges of nepotism and favoritism being heaped on the chief justice-led Judicial Council responsible for the appointment of judges. The decision drew controversy as one of the council members boycotted the meeting and another was absent.
That meeting of the Judicial Council that “continued” till late into the night, according to knowledgeable sources, also flouted established norms and criteria while recommending high court judges. As a result, people close to the judges and political party leaders were appointed as high court judges.
In case of disagreement, the five-member Council decides through a majority. But on that night, Baidya Nath Upadhyay, who was a Judicial Council member as the senior-most justice of the Supreme Court, refused to sign the decision, while Ram Prasad Sitaula, another Council member, was absent. Although Senior Justice Baidya Nath Upadhyaya remained absent in the meeting and council member Ram Prasad Sitaula, the representative of Nepal Bar Association (NBA), boycotted the meeting, Chief Justice Sushila Karki, Minister for Law and Justice Ajaya Shankar Nayak and Judicial Council member Padam Baidik, who was appointed by the prime minister, decided to appoint 37 judges at district courts and also 27 advocates and 16 joint secretaries and special class officials of legal, judicial and government attorney services as the judges of high courts. Maoist leader and former minister Barshaman Pun, who the Judicial Council did not recognize at all, was also said to be present in the midnight meeting.
Of the 80 judges appointed, 18 were said to be close to the Nepali Congress, six to the CPN (Maoist Center) and five to the then main opposition CPN-UML.Some appointees were relatives of leaders and top officials.
Objecting to the Judicial Council’s midnight decision, the NBA said in a statement the following day that the decision had violated several norms. “The JC decision has breached the established norms,” the NBA had concluded. It had also taken serious exception to “the sudden and midnight decision,” saying the recommendations made without the consent of two Judicial Council members—Upadhayay and Situala—had raised several questions.
Interim Constitution expanded scope of politicization
The Interim Constitution which came into being after the political change of 2006 brought about further changes to the Judicial Council, adding an NBA representative while reducing the number of Supreme Court justices to one. This increased the political meddling even more, as NBA appointments often showed factional interests. Meritocracy was eroded, and political power-sharing dictated appointments. Senior advocates were sidelined, and junior candidates leapfrogged over their seniors.
“The Constitution of Nepal 2015 gave continuity to the Interim Constitution’s provisions for the Judicial Council. As a result, appointments to the bench are, today, hugely influenced by politicization and are mired in nepotism, favoritism, and factionalism,” says Senior Advocate Dinesh Tripathi of the Supreme Court.
Photo: Dinesh Tripathi, Senior Advocate
Judicial Council: A den of political influence
The Judicial Council, which is entrusted with the responsibility of appointing judges, has become a den of political influence. Similarly, the Constitutional Council, entrusted with recommending the Chief Justice, has succeeded in making the process a political tug-of-war and placing the executive in a dominant position over the judiciary. This politicization has brought down public confidence and raised serious questions about the competence, impartiality, and integrity of the judiciary and judges.
The “structural flaws” in the Judicial Council reshaped after the 2006 People's Movement have aggravated the problem. By its inclusion of politically appointed members, the Council has become a tool for political parties to install their loyalists as judges. Political interference has tainted judicial appointments to the extent that many court verdicts now appear to be influenced by partisan agendas.
A former high court judge warns that political parties not only appoint judges to serve their interests but also wield impeachment as a weapon to silence dissenting judges. “This trend strikes at the heart of constitutionalism and judicial independence, threatening the very foundation of the justice system,” he observes.
The political capture of the judiciary in Nepal has some major turning points in its history. The appointment of then-Chief Justice Khil Raj Regmi as the chairman of the Council of Ministers in 2013 was one such turning point, which was actually expected to break a political impasse but instead laid the ground for the exploitation of the judiciary by political forces. As a former Supreme Court Justice points out, this dual role blurred the lines between the judiciary and the executive, fostering a culture of political opportunism within the judiciary.
Later Chief Justices only deepened the crisis. Damodar Prasad Sharma was accused of being notorious for nepotism and fostering corruption, turning the judiciary into a playground for middlemen. His successor, Ram Kumar Prasad Shah, did little to eradicate these practices, while KalyanShrestha, despite a reputation for integrity, was unable to resist political pressures. The impeachment of Sushila Karki, Nepal's first female Chief Justice, over a politically charged dispute further cemented the judiciary's vulnerability to political retaliation.
Senior Advocate Tripathi points at another shortcoming of the Judicial Council. “It is an open secret that there is massive judicial corruption in Nepal. But the Judicial Council has not been able to act on that. It’s been a mute spectator,” he observes. He also calls ‘the experiment known as Judicial Council’ a total failure. “The Judicial Council has not been able to serve the purpose it was envisaged for,” he says.
‘Connection is important, not qualification and capability’
While Nepal’s prominent political leaders often speak about judicial independence, their actions reflect a lack of seriousness in upholding it. Judicial independence cannot be preserved when appointments are based on familial, personal, or political affiliations, according to some senior advocates of the Supreme Court.
Appointments to the judiciary are made according to connections, not qualifications, and many of those appointed have questionable professional histories or political affiliations, laments Senior Advocate Tripathi. “This manipulation has reduced the judiciary to a mechanism for validating political decisions, further entrenching power and eroding its integrity. The Nepal Bar Association, acting as a proxy for political parties, has only added to the chaos with partisan boycotts and disruptive actions,” says Tripathi.
“These days, it’s not only political loyalty that counts; aspiring judges reach the doorsteps of powerful politicians and parties with briefcases full of cash,” notes Tripathi, “A politicized judiciary cannot be a competent and impartial judiciary.” Public confidence in the judiciary in Nepal has been on a continuous decline and today it has reached rock bottom, he adds.
This culture of political favoritism and quota-based appointments has made Nepal's judiciary incapable of acting as an impartial arbiter of justice. Judges now prioritize political alliances over merit and integrity, and major political leaders use the judiciary to shield themselves and their allies from legal consequences. This dangerous trend not only undermines public trust but also jeopardizes the constitution itself.
Experiences from other countries in South Asia
The international standard for judicial appointments underscores the need for impartiality, independence, and meritocracy. While in democratic countries like the United States, judicial nominations may be political, the judiciary remains independent to ensure public confidence. India's collegium system, which keeps most of the judicial appointments in-house with the judiciary, offers another model to protect independence.
In Sri Lanka, the Judicial Service Commission is constituted with the Chief Justice and two judges appointed by the President. Judges are appointed by the President upon the recommendation of this commission. In Pakistan, the President selects and appoints judges upon the recommendation of the Chief Justice. However, in Nepal, there is a provision for a Judicial Council to oversee the appointment of judges. It comprises the Chief Justice as the Chairperson along with the Minister for Law, the senior-most Justice of the Supreme Court and two members from the legal fraternity out of which one is on behalf of the Prime Minister and the other one is on behalf of the NBA. According to Subsection 7 of Section 35 of the Judicial Council Act, 2073, the decisions of the Judicial Council are valid based on a majority.
The Panchayat Constitution of 2019 BS also defined the qualifications for judges. Although some argue that judges opposed to the Panchayat system would not be allowed to enter the judiciary, seniority, capability and experience were still prioritized during appointments. In sharp contrast, today, Nepal's judiciary has become an open playing field for political power plays, where even appointments reportedly can be bought and sold for millions.
‘Let’s go back to the 1990 Constitution provision’
Globally, most countries vest authority in the Chief Justice or the head of state, on the recommendation of the Chief Justice, to appoint judges. This model was replicated in Nepal during the Panchayat era. Even after the political change of 1990, the judiciary (Chief Justice) would have a clear majority in the Judicial Council, with two SC justices as members of the Council. But the political change of 2006 strengthened the executive’s grip over the Judicial Council.
“The law minister already represents the Cabinet or the Prime Minister in the Judicial Council. Then why do we need another separate representative of the Prime Minister in the Judicial Council?” asks Senior Advocate Tripathi. He argues that instead of a separate Judicial Council member to be appointed at the recommendation of the Prime Minister, another senior justice of the Supreme Court should be appointed a Judicial Council member. “The current structure of the Judicial Council is defective. It gives the politicians or the executive an upper hand in judicial appointments,” he asserts.
Senior Advocate Bhattarai echoes the same concerns. “I have reached the conclusion that the 1990 Constitution provisions regarding Judicial Council appointments were better,” he told Republica during an interview.
Photo: Tika Ram Bhattarai, Senior Advocate
According to Bhattarai, the NBA, too, has noted the defects in the existing schema and urged a reversion to the position as it existed under the 1990 Constitution which guaranteed a judiciary-dominated council. It suggested retaining an NBA representative while replacing the Prime Minister's nominee with another senior Supreme Court justice to avoid executive overreach.
“In the end, the reforms aimed at increasing judicial integrity inadvertently contributed to further politicization. Restoring balance involves going back to the foundational principles of the 1990 Constitution so that merit and judicial independence take precedence over political interests.”
The legal and judicial experts, who Republica talked to, are of the belief that if Nepal’s judiciary is to reclaim its credibility and independence, immediate and drastic reforms are required. “The Judicial Council must be restructured to eliminate political interference, and appointments must be based solely on merit and integrity,” says Bhattarai.
“Justice is dying in Nepal. This is substantiated by various reports prepared by the very justices of the Supreme Court and verdicts on several cases. Today, we have justices who prevent the filing of a case against former PM Madhav Kumar Nepal, who is implicated by the police in the infamous Lalita Niwas land grab case. We have judges who quashed the writ petition against Lila Ballabh Ghimire, the former Koshi Province Minister accused of attempting to traffic Nepalis to Japan. We have judges who validated the then-Oli government’s controversial decision to make 52 appointments to various constitutional bodies, by postponing hearing on the writ petitions filed against those appointments. We have judges who quash the petition against the donation of land worth millions of rupees by controversial businessmen to the parties in power. And we have judges who keep postponing the hearing on cases against powerful politicians,” observes Senior Advocate Neupane, adding, “We have to save the judiciary and justice in the country.”
“Without urgent action, the continued politicization of the judiciary risks plunging Nepal’s justice system into an irreversible crisis, undermining the rule of law and further shaking the public’s faith in the current system of governance,” concludes Senior Advocate Tripathi.
Expert Opinion
Righting the Wrongs in Judicial Appointment
Raju Prasad Chapagai
Photo: Raju Prasad Chapagai, Senior Advocate
Nepal's constitutional framework for judicial appointments broadly aligns with the principles of judicial independence. It establishes a Judicial Council, structurally distinct from the executive and legislature, to appoint Supreme Court and lower court judges. Similarly, the Constitutional Council, which includes representatives from the executive, judiciary, and legislature, is responsible for recommending the Chief Justice's appointment. Parliamentary hearings are required for Supreme Court justices, while district court judges are selected through written exams. The Constitution underscores judicial independence as a core value, adhering to international human rights standards on judicial independence.
However, merely referring to the stated normative arrangements, I, as a member of the legal community, cannot conclude that Nepal's judicial appointment system has ever been truly merit-based, fair, and transparent! If I were to say "yes" to the question of whether a well-known jurist can secure a judgeship in the Supreme Court or High Court of Nepal without resorting to nepotism, favoritism, political patronage/blessings, or any other form of corruption, it would be regarded as a big joke.
Nobody believes that a judge can be appointed to the higher courts merely based on merit. There is a widespread common perception that the judicial appointment system has frequently been misused for petty interests.
Why has this been the case? Why is the credibility of judicial appointments so easily questioned? What has prevented us from advancing a credible judicial appointment system? What are the major fault-lines in the judicial appointment system? How can these fault-lines be remedied?
I don't have ready-made answers to these pressing questions, which deserve serious discourse. This piece, therefore, aims to underline that a constructive dialogue among a wide range of stakeholders on the dynamics of the judicial appointment system is of utmost importance.
The growing challenge in present-day judicial appointments has its roots in the haphazard revision of the Judicial Council's composition in the 1990 Constitution under the Interim Constitution of 2007 and its continuation in the 2015 Constitution. This does not imply that judicial appointments were ideal under the 1990 Constitution; rather, the situation has deteriorated under the revised appointment system.
Whereas the structure in the 1990 Constitution represented a more balanced composition—comprised of the Chief Justice, the two senior-most Supreme Court judges, the Minister of Law, Justice, and Parliamentary Affairs, and one distinguished jurist nominated by the King on the recommendation of the Council of Ministers—the revised structure dramatically shifted this balance.
While the 2007 revision reduced judicial representation to the Chief Justice and one senior-most judge, it introduced a representative nominated by the highly politicized Nepal Bar Association and another lawyer at the recommendation of the Prime Minister. The inclusion of the law minister and two legal members, who eventually represent executive or partisan interests, has effectively politicized the council, undermining its autonomy and neutrality. Even some Judicial Council members representing the legal fraternity have reportedly attempted to manipulate the appointment process to secure Supreme Court judgeships for themselves!
Against this backdrop, there is a consensus among justice sector stakeholders that the revised structure has enabled the executive to override all other legitimate interests in judicial appointments, prioritizing partisan interests. Even when the Chief Justice and senior-most judge strive to ensure selections free from executive influence, they are always in the minority, and they are compelled to go for compromised appointments. The imbalance in the composition of the council is thus the foundational flaw fueling systemic challenges in ensuring impartial, merit-based appointments.
Despite the composition, in case the selection process was fair, transparent, and competitive, the partition interest could have been mitigated. But the selection process lacks clarity and transparency, failing to explain why one candidate is chosen over others or what criteria and sequence were followed in reaching a decision. It is unclear how the roster of potential candidates is maintained, whether a systematic background check is conducted for each candidate, or what considerations guide the final selection. Reasoned decisions are required by law, but this legal mandate is consistently contravened. Attempts to introduce well-elaborated criteria/standards and processes for selection have been foiled time and again, as such measures are seen as hindrances to achieving vested interests. This cloudiness has become a heaven for individuals to attain judicial positions on the basis of political connections, nepotism, and favoritism.
Moreover, there is neither an intra-council check and balance nor effective external scrutiny over the appointment process. While a number of cases were filed questioning the fairness of appointments, judicial responses remain ineffective or inadequate to right the wrongs. In the absence of transparency and accountability, the system often relies on quota-based allocations among the council officials themselves.
The flaws in the judicial appointment system undoubtedly require comprehensive reforms to restore public confidence in the judiciary. A thorough review of existing laws, procedures, and practices related to judicial appointment is essential. Key reforms should include mandatory background checks for candidates, transparency and clarity in the selection process, and evaluation based on pre-determined criteria. Additionally, the reasons and grounds for each recommendation should be made public. The parliamentary hearing system needs to be revisited to ensure it becomes meaningful and effective.
The composition of the judicial council needs to be rectified in a way to substitute the NBA-recommended representative with one more judicial representative. This should be considered as one of the agenda items while considering the review and amendment of the constitution.
However, reforming the appointment process alone may not be sufficient to rebuild public trust, particularly given the legacy of the massively controversial appointments of high court judges. Kenya’s experience might offer valuable lessons in this regard. Judges and magistrates there underwent a rigorous vetting process, with options for voluntary retirement or removal based on misconduct or incompetence. Mindful of the pros and cons, we could consider adopting a similar judicial vetting process to clean up the judiciary and restore public confidence.
Last but not least, if the present Chief Justice's repeated commitment to judicial reform is solid, he should walk the talk, prioritizing the comprehensive reform of the judicial appointment system and initiating constructive dialogue among the justice sector stakeholders towards that. The faults in the appointment system must be addressed as earliest as possible; otherwise, mere discussions about judicial reform will not yield any results. It is worth internalizing that appointing a judge is like planting a seed of justice: the fruit will depend on the quality of the seed as per the saying that Dhaturo ropera kagati faldaina (We cannot grow lemons by planting Dhaturo).
(Chapagai is a senior advocate with a concentration on constitutional and human rights/ public interest law. He can be reached at rajuforjustice@gmail.com)
