Currently, the Supreme Court has 12 permanent judges, along with Chief Justice Ram Kumar Prasad Shah. The Interim Constitution stipulates that there should be 15 such permanent judges apart from temporary judges who should be appointed as per the need. The need is clearly there. The Supreme Court's annual report states that there are 76,148 cases pending in various courts in the country. In Supreme Court alone, there are 18,789 such cases. One reason for such huge backlog is lack of adequate judges at the apex court.The Judicial Council is the body entrusted with managing and appointing human resources in the judiciary, including the apex court. In recent times, the working of the Judicial Council has been minutely scrutinized. Nepal's Judicial Council was once praised as a truly independent body that strengthens judicial independence by preventing executive or legislative intervention in appointment, transfer and management of judges. But of late its appointments and actions have drawn criticisms from many quarters.
When it nominated eight judges to the Supreme Court a year ago, it was criticized for making seniority the only parameter for selection, without considering capability and performance of the people concerned. But when it nominated Appellate Court judges one and a half years ago, it was this time criticized for overlooking seniority and capability, and resorting to what many called its 'pick and choose' style.
According to the Interim Constitution, the Judicial Council has five members—the sitting Chief Justice (chair), the senior-most judge of the Supreme Court, the sitting justice minister, a nominee of sitting prime minister and a nominee of Nepal Bar Association. The Constitution gives this body complete authority over appointment, transfer, disciplinary actions and dismissal of judges.
At present, the Judicial Council comprises Chief Justice Ram Kumar Prasad Shah (chairperson), justice minister Narahari Acharya, Supreme Court senior-most judge Kalyan Shrestha, and prime minister-nominee Khem Narayan Dhungana. The fifth member who was the nominee of Bar Association, Upendra Keshari Neupane, has resigned. He resigned three months ago after the Association wrote a letter demanding his removal. The Bar was unhappy over the way the Council overlooked its concerns during last year's appointment of Supreme Court judges. That apart, since the current Chief Justice is retiring in a couple of months, and Dhungana is also retiring next month, the Council itself will lack adequate members.
This comes at a time when the Council is expected to make nominations for not only the Supreme Court but also fill up scores of district and appellate court postings. This is, therefore, right time to discuss the challenges facing the Judicial Council and how they can be overcome.
The obstacles
Due to lack of clearly stipulated protocol, each and every nomination or action of Judicial Council draws criticisms, from one quarter or the other. After the resignation of the Bar nominee, the Supreme Court has written to the Bar asking it to nominate his replacement. However, the Bar has been unable to do so because of differing views within the organization. This has resulted in a situation whereby the Council will either have to wait for the Bar's nominee or take decisions without the presence of full members. Though the constitution does not say anything about how the absence of one or more Council members affects its decision making, the practice has been that the Council takes decision by consensus.
This problem in the Council has resulted in a sense of anxiety and even frustration among the larger community of judges at district and appellate courts. They are demoralized that their performance is not being judiciously appraised. The Secretariat of Council keeps individual profile of all judges. But they don't seem to study it carefully when making nominations or taking any action. In fact, from the time of implementation of Interim Constitution, the Council has not taken action against even a single individual based on performance deficiency or allegations of corruption. It also faces another challenge of ensuring that its nominations are inclusive. At present, less than five percent of judges are from women, Dalit, Muslim and Janajati communities.
The way out
Most important is to build trust among Council members. They need to hold regular meetings to thrash out outstanding issues. The Chief Justice should take the leadership, put forward his agenda and try to win the confidence of others. The Council needs to study the profile prepared by the Secretariat, match that with the record kept by the apex court and only then take decision on nominations or actions.
At present, the Council is incomplete. The Supreme Court should take the initiative and urge the Bar to nominate its member at the earliest: it can ask the Bar to make nominations within a week. The Council should not wait forever. If there is no nomination, it should start taking decisions based on two-third majority.
There is a need to build confidence between the bar and the bench. One way could be through fair Council nominations for vacant positions in the apex court. For instance, if the Council decides to nominate three permanent judges and seven temporary judges for the apex court, it can implement 60-40 formula: nominate 60 percent from among cadre judges and 40 percent from lawyer community. If it does so without compromising seniority, performance and track record, it will boost confidence in the judiciary. In fact, when selecting nominees from the lawyer community, the Council should give consider his/her expertise, experience and integrity.
Likewise, to address questions about corruption and incapability in judiciary, the Council should again take the initiative. For instance it could form a committee to study the situation and give recommendations within three months. The recommendations should then be implemented to win the larger public trust.
These measures could spell a turnaround of the judiciary. It will also stem questions about the necessity of this council in its present form.
The author is Executive Director of Nepal Law Society
nepallawsociety@gmail.com
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