A Test of Judicial Transparency

A controversy has emerged over the recommendation of candidates for four vacant positions of Supreme Court justice, with allegations that seniority and the established order of precedence were disregarded. Two members of the Judicial Council (JC) have registered written notes of dissent, arguing that the decision was neither objective nor transparent. That even a decision concerning such a prestigious position as that of a Supreme Court justice could not be reached unanimously is a matter of concern. For any individual or institution, protecting its reputation is far more difficult than building it. Once lost, reputation is rarely restored. The same applies to state institutions. In Nepal, however, the reputation of state institutions appears to have steadily declined in recent years. The fact that the judiciary does not appear to be an exception is particularly troubling. There have previously been public complaints that the administration of the judiciary was opaque, that the influence of middlemen in the courts had increased, and that problems such as corruption, delays and disorder were becoming evident, as in other government agencies. Judges themselves had pointed to such problems and offered suggestions for reform. After some of those suggestions were implemented, complaints about practices such as “bench shopping” also appeared to decline.

The Constitution of Nepal provides for the Judicial Council, chaired by the chief justice, precisely to ensure that decisions concerning the appointment of judges are made independently and fairly. The Council also includes representatives of the Nepal Bar Association, while the senior-most justice of the Supreme Court is a member. The fact that the senior-most justice has dissented from the latest decision, arguing that the recommendations were neither transparent nor based on objective criteria and that names were selected without due regard to law and procedure, therefore warrants serious attention. These concerns go directly to the credibility and dignity of the judiciary. The Nepal Bar Association has also expressed dissatisfaction, saying it was not consulted and that legal professionals were ignored. There had already been controversy over the appointment of Chief Justice Dr Manoj Kumar Sharma, with allegations that seniority had been disregarded. Had that appointment been followed by visible improvements in the judiciary, there might perhaps have been greater public acceptance of such departures from convention. Instead, the latest controversy risks further weakening public confidence in the institution. The Judicial Council must therefore clearly explain why seniority was set aside, what objective criteria were applied and why the decision had to be taken by majority. Without such an explanation, even the credibility of the recommended justices could be affected.

The judiciary has previously faced damaging labels, including accusations that judges sought political patronage or that judicial appointments were made through questionable processes. Concerns that parliamentary hearings can become mere “rubber stamps” have also persisted. The Council should not allow another appointment process to deepen such perceptions. There is an urgent need to fill the vacant positions at the Supreme Court. But urgency cannot come at the expense of transparency. The recommendations will now go to the Parliamentary Hearing Committee, which should take the dissenting opinions seriously, seek clear answers and make its proceedings as transparent as possible. Where legitimate procedural concerns arise, they should be addressed rather than brushed aside. Doing so would also strengthen the credibility of the parliamentary hearing process. Ultimately, judicial independence depends not only on who is appointed but also on how the appointments are made. A process that is transparent, objective and open to public scrutiny is essential to preserving confidence in the judiciary. The Judicial Council should therefore publicly explain and defend its decision, disclose the criteria it applied and address the concerns raised by its dissenting members. Transparency is not a threat to judicial independence; it is one of the conditions that sustains it.