The report was presented at the full court Sunday by a three-member committee of justices. The apex court had formed the committee headed by Justice Baidyanath Upadhyaya on July 1 to study provisions regarding the judiciary in the draft of the new constitution. Justices Gopal Parajuli and Om Prakash Mishra are members of the committee.
The draft under deliberation at the Constituent Assembly has given continuity to the current structure of the Judicial Council. Under the existing structure, the chief justice chairs the Judicial Council and includes the seniormost justice, the minister for law and justice, a legal expert appointed by the president on the recommendation of the prime minister and another legal expert appointed by the president on the recommendation of Nepal Bar Association as members.Contrary to this, the study report of the apex court has suggested including three seniormost justices on the council. The report has also suggested including a provision in the constitution barring retired council members from taking up court cases.
The report has suggested that the provision in the draft on forming a Constitutional Court for 10 years should be removed. "The provision of establishing a Constitutional Court parallel to the Supreme Court should be removed. There should be a provision for a special constitutional bench within the Supreme Court," the study report states.
The draft has a provision for forming a Constitutional Court chaired by the chief justice and including two seniormost justices of the Supreme Court and two judges appointed by the president at the recommendation of the Judicial Council.
Likewise, the justices have expressed dissatisfaction over the provision on reappointment of judges and suggested that this should be removed from the draft. The report has also suggested including a provision on forming a separate commission on judicial accountability instead of giving the Commission for Investigation of Abuse of Authority (CIAA) powers to investigate judges removed through impeachment or removed by the Judicial Council.
Furthermore, the Supreme Court justices have suggested amending the provision on age limit for justices and setting the age for compulsory retirement at 70 instead of 65 as proposed in the draft.
Likewise, the report has suggested amending the provision under which the annual report of the Supreme Court is to be presented to the federal parliament by the president through the prime minister. Instead, the justices have suggested only a provision for making the annual report public through the president.
Meanwhile, the report has suggested tightening up the criteria for appointing justices and judges from among advocates at law. Instead of the proposed provision of considering a person, who has practised law for at least 15 years as a law-graduate advocate or senior advocate, eligible for the position of Supreme Court justice, the report has suggested raising the experience bar to 20 years. The study committee has also urged that only an advocate or senior advocate with the experience of practicing law for 15 years should be considered eligible for the position of judges at High Courts instead of the proposed criteria of 10 years.
Likewise, the justices have proposed appointing 90 percent of district court judges from among Gazetted Second Class officers in the judicial service on the basis of their capability and performance, and only 10 percent through open practical tests.
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