The country is entering a dangerous state of vacuum. Following the dissolution of the Constituent Assembly on May 27, the country is without a legislature. The same event gave the Baburam Bhattarai government a caretaker status. The only remaining fully operational organ of the state, the judiciary, also risks being completely crippled following the Supreme Court’s decision on Sunday to forward the writ on term extension of temporary SC judges and their promotion to a full bench for final verdict.
The irony is that there can be no full bench on this case. Impending retirements of six of the seven ad hoc SC judges and the resignation of one, as well as legal provisions that bar SC judges invoked in the case from sitting on full bench, have made it impossible to meet the quorum of three judges for a full bench. This effectively means that after Sunday’s verdict, the apex court will be forced to operate with only six permanent justices in total, including the chief justice, cutting the court down to half its strength—Article 102 (5) of the interim constitution provisions for fourteen judges in addition to the chief justice. The same Article clears the way for appointment of ad hoc judges if the number of existing judges becomes insufficient.
Up to 200 cases are up for hearing at the Supreme Court every day, of which, owing to its curtailed strength, barely 20 are settled, creating a huge backlog. With all the retirements lined up for the near future, service delivery will get worse still, rendering the Supreme Court all but dysfunctional. There have been fears that the Maoist government is deliberately delaying filling the vacant posts in important constitutional bodies with the intent of eventually ‘capturing the state,’ which they will do, it is alleged, by destroying all constitutional checks on government. Baburam Bhattarai, to his credit, has done his bit to quell the rumor when he requested Nepali Congress President Sushil Koirala on Monday morning to back the government ordinance that will clear the way for the appointment of new Supreme Court judges.
Had the Supreme Court on Sunday decided that parliamentary hearing was unnecessary for promotion and term extension of ad hoc judges, as the writ petitioner wanted, the decision could have sparked a new debate over the powers of the judiciary under the interim constitution. By delaying a final verdict on the matter, the two adjudicating justices on Sunday have, perhaps inadvertently, thrown the ball into the court of the political parties. This is in keeping with the interim constitution’s spirit, with its emphasis on political consensus to clear contentious political and legal hurdles, especially in the absence of a parliament. The parties must now rise to the challenge and build consensus to clear the way for new appointments in the Supreme Court by setting larger political issues aside for the time being.
While the fragmented polity in the last few years certainly didn’t help matters, the judiciary cannot be let off the hook for the current state of judicial vacuum either. For a long time, the Supreme Court seemed perfectly happy to operate with ad hoc judges, a time it could have used to push for their permanent status. Again, partisan politics inside the judiciary came in the way of this crucial decision. Both the political parties and the judiciary need to review their failings, and learning from the past, ensure that a situation of near complete judicial vacuum never arises in the future.
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