KATHMANDU, Sept 15: A year ago, an amendment to the Judicial Council Regulations sparked a conflict between the Bar (legal practitioners) and the Bench (judges). Nepal Bar Association (NBA) insists that the process of appointing judges should not proceed until the amended regulations are repealed. This stance has led to indications that the appointment process for judges in the high courts may be halted. The amendment to the regulations is related to the sequence of judicial appointments to the high courts.
Two rules of the regulations related to the sequence of judicial appointments to the high courts were amended, targeting the Chief Registrar of the Supreme Court. After the NBA staged protests demanding the repeal of the amendments, the Bar-Bench Coordination Committee, tasked with finding a resolution, failed to submit a consensus report, raising the possibility of escalating the conflict. The deadline for the committee's mandate expired on Friday.
The committee has submitted two separate reports to the Chief Justice and Chairman of the Judicial Council, Bishwoambhar Prasad Shrestha. The committee consisted of senior Supreme Court Justice Prakash Man Singh Raut, Judicial Council member Ram Prasad Bhandari, Nepal Bar Association President Gopal Krishna Ghimire, General Secretary Ranjita Khanal, and Secretary of the Judicial Council Yam Bahadur Budhathoki. The committee was unable to produce a consensus report because Bar representatives Ghimire and Khanal insisted that the amended rules should be repealed.
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NBA General Secretary Khanal claims that Section 11, Clause (b), Clause (b)1, and Clause (b) 2, of the amended rules, which stipulate that the seniority will be based on the roll order rather than who has already been appointed as a high court judges, are unconstitutional. The Bar's statement issued on Friday states, "Since there was no consensus within the committee, Ghimire and Khanal from the Bar submitted a dissenting report recommending the repeal of the amendments."
The NBA demands that the judicial appointment process be halted until the amended regulations are repealed. The statement adds, "Meetings with the Bar associations nationwide will be held to make necessary decisions and plan further actions." Legal professionals have warned that the Judicial Council amended the regulations to favor certain individuals in the appointment process and have called for immediate correction.
The Judicial Council, however, claims that the amendments to the regulations were made as needed. The Judicial Council Regulations, 2074 BS (First Amendment, 2080 BS) was published in the Nepal Gazette on September 18 of the previous year. The amendments included a provision for seniority where the person appointed to the position of High Court Judge from the role order of Chief Registrar of the judicial service would follow the Chief Judge in the seniority sequence.
The amended regulations include a provision stating that seniority will be determined based on the sequence of appointments to the High Court judgeship relative to the date of appointment to a distinguished category position. Legal professionals claim that the new provisions added to Rule 11, Clauses (b)1 and (b)2, are directly in conflict with Article 141(3) of the Constitution and existing laws. The Judicial Council, chaired by the Chief Justice, decided on the regulation amendments on September 18, 2023 (Ashoj 1, 2080 BS).
While the committee was working, the "Judicial Officers Society," an organization of employees in the judicial service, submitted a memorandum to the committee. The memorandum criticized the Nepal Bar Association for opposing the regulation amendments through unconstitutional means, expressing dissatisfaction that the Bar did not follow legal procedures or seek remedies through legal channels but instead resorted to protests. The memorandum was signed by the Society's President Baburam Dahal and General Secretary Ashok Kumar Chhetri.
The memorandum also indicates a divide between the Bar and the Bench. The Society commented that a responsible body like the Nepal Bar, which is watchdog of the rule of law, showed bias against employees by restricting the broader meaning of the Bench to just judges. The Society expressed dissatisfaction with the Bar's protest methods, which, according to them, were inappropriate as they affected even professional legal practitioners who were not involved in the amendment of the Judicial Council Regulations.
The Society stated that the issue should have been addressed through the court according to the law, rather than the Bar demanding the repeal of the amendments through protests. The Society believes that the regulation amendments have positively impacted the career development of senior cadre judges. They argued that the increase in appointments to district judge positions instead of city registrar roles made it challenging to retain capable individuals in the institution, which justified the need for amending the regulations.
