October 12, 2017 06:00 AM NPT
KATHMANDU, Oct 12: The Supreme Court on Thursday is set to decide the fate of 80 high court judges who were appointed nine months ago.
The appointments came under controversy after members of the Judicial Council, the appointing authority, and Chief Justice Gopal Parajuli criticized the appointment decision, saying it was made in secrecy at midnight.
The Supreme Court has been taking up the legitimacy of the appointments, examining whether or not the mandatory procedures set forth in the Judicial Council Act 1992 had been adhered to. The matter has given rise to serious debate within judicial circles. The appointments were made at the initiation of then chief justice Sushila Karki.
Advocate Toyanath Dhungana and Deputy Attorney General Durga Bandhu Pokharel challenged the appointments in a writ petition at the apex court immediately after the appointment of the 80 judges. They argued that there were procedural errors involved as two members of the Judicial Council -- then seniormost justice Vaidyanath Upadhyaya and Ram Prasad Sitaula -- were not included while making the decision. They said the appointments should be annulled as these "undermine the rights of several other eligible candidates".
"If everything goes as planned, the apex court will decide the case on Thursday," an informed source told Republica. According to him, the case has been scheduled at number 4 in the weekly submissions list.
With the case against 11 justices for the Supreme Court pending and the fate of 80 high court judges uncertain, the Judiciary itself has come under debate. According to writ petitioner Dhungana, more than four dozen lawyers are set to plead in favor of the petitions.
Chief Justice Parajuli, while submitting a written reply in the capacity of Judicial Council chairman, argued that every appointment of judges must not only be technically legitimate but should also be legitimate under the principle of judicial independence. In his reply, submitted to the apex court on August 24, Parajuli underlined that no order could be issued in relation to him because he did not have any positional capacity at that time over the appointment and requested the bench to consider the replies of other respondents on various disputed matters such as the legitimacy of meetings and time and date controversies.
Parajuli, in his reply, stated, "I did not participate in the decision-making process at that time because I did not hold any position. The petitioners should not make me a defendant but they may do so in my current capacity of Chief Justice. Hence it is meaningless to name me a defendant in the petition over work which was performed at that time. Thus the order cannot be issued in relation to me and I would like to request considering of the constitution, law, jurisprudence and the relevent procedures in this case."
Parajuli underlined that the appointment was made by other members of the Judicial Council when two members did not attend the meeting and he received the information the following day through the media.
Sitaula, another member of the JC, also claimed in his written reply that he and then JC member Upadhyaya didn't attend the meeting held on January 10, 2017.
According to him, the appointment was made by a January 12 meeting when they had already left because Chief Justice Sushila Karki did not initially arrive at the meeting . Sitaula claimed that Karki invited Upadhyaya and him for the meeting at the JC Secretariat at Kupandole, but she did not herself attend. Later, they went to a meeting called at the Chief Justice's Official Residence in the evening but they walked out when Chief Justice Karki was not present there either.
Upadhayaya also replied to the apex court stating that he was not responsible for any error in the appointment because the decision was taken in his absence. He also underlined in his written reply that the decision was passed without him and another member, Sitaula. "I am no longer in the posit because of retirement, so the order could not be issued to me," he argued.
Then chief justice Karki, then law minister Ajaya Shankar Nayak and JC member Padam Vaidik, however, defended the appointment, saying it was made according to the constitution, law and the principle of inclusion. They also claimed in their respective replies that the judiciary would lose its independence if the appointment was annulled.