KATHMANDU, Sept 9: The government’s failure to follow constitutional procedures has once again delayed the appointment of a new chief justice. With the current Chief Justice Bishowambhar Prasad Shrestha set to retire on October 6 due to age limitations, the Constitutional Council has yet to recommend a successor—a constitutional requirement that should have been fulfilled a month in advance. The delay is seen as part of a broader issue where the government has neglected to implement key constitutional mandates, leading to a backlog in judicial appointments.
Historically, the Constitutional Council, which is chaired by the prime minister, has seldom met the constitutional deadlines for recommending a new chief justice. This failure extends beyond the judiciary, as the Council has also delayed filling vacancies for heads and office bearers of other constitutional bodies.
Expedite Appointment of Chief Justice
According to Article 284 of the Constitution, the Constitutional Council is required to make recommendations for such appointments at least one month before a vacancy occurs. The Council is composed of the prime minister, the chief justice, the speaker of the House of Representatives, the chairperson of the National Assembly, the leader of the main opposition party, and the deputy speaker. For the appointment of a new chief justice, the law minister must also be included in the decision-making process.
Once Chief Justice Shrestha retires, Justice Prakash Man Singh Raut, who is next in seniority, is expected to take over the position. However, the lack of timely recommendations has cast doubt on whether the process will proceed smoothly. This delay is particularly concerning, as five positions in the Supreme Court are set to become vacant within the next month. The Judicial Council, tasked with recommending new appointments, has also failed to act in a timely manner, contributing to the increasing number of vacancies.
The Supreme Court has intervened in the past, directing the Judicial Council to adhere to its constitutional obligations. Recently, a joint bench of Justices Hari Prasad Phuyal and Binod Sharma issued an order requiring the Council to make recommendations at least one month before vacancies occur, as stipulated by Section 4 of the Judicial Council Act 2073. Despite this, the backlog persists.
In 2075 BS, Advocate Deepak Bikram Mishra filed a writ petition with the Supreme Court, accusing the government of failing to recommend appointments for four vacant positions of Supreme Court justices, in violation of the Judicial Council Act. While the court has issued a ruling in favor of the petition, the full text of the verdict has yet to be published.
Advocate Mishra warned that the ongoing delays are a serious violation of the constitution. "The constitution does not allow for vacant positions among justices. The failure to make timely appointments is a clear breach of constitutional and legal obligations," he said. Mishra has also called for urgent appointments in the district and high courts, where numerous positions of judges remain vacant.
