With the appointment of eighty judges for seven high courts by Judicial Council on January 2, the vacant positions of the high courts are now filled. However, the decision taken at midnight by three members, out of five, has sparked off controversy.
At a meeting headed by chief justice Sushila Karki, Minister of Law and Justice Ajaya Shanker Nayak and Padam Prasad Baidik (affiliated to Maoist-Center), three members of the council recommended the names at midnight.
Seniormost judges of the council Vaidyanath Upadhyaya and Ram Prasad Sitaula, a nominee of Nepal Bar Association, remained absent from the meeting, expressing resentment over the decision.
“I left the meeting of the council because the council violated all past precedents in the appointment of judges. The final list of candidates was given to me just an hour before the meeting and the majority members denied to further discuss the name list,” said justice Upadhyaya, who retired on 3 January. “I left the meeting when they did not listen to my voice.”
It is widely reported in daily newspapers that the council endorsed the list of the judges as approved by Nepali Congress leader Sher Bahadur Deuba and prime minister and Maoist Center leader Pushpa Kamal Dahal.
Although 32 judges are appointed from among the lawyers, Nepal Bar Association issued a statement objecting to the process of appointment of judges. “The judges are qualified and competent but the council appointed the judges without consent of Bar,” said Sher Bahadur KC, president of Nepal Bar Association. “Nepal Bar may boycott the public functions of chief justice Karki.”
Minister Nayak has different views. “Out of 27, the council recommended the nominees of three major parties, Nepali Congress, Maoist Center and CPN-UML as per their strength,” said minister Nayak. “Among 27 lawyers, we picked up seven lawyers close to opposition CPN-UML.”
Those appointed are 37 from district judges, 27 from Nepal Bar Association and 16 from joint secretaries and secretaries (working under law, justice and district attorney groups).
The JC had said that the selection process started from the first week of November and argued that the judges are appointed from the candidates, who had submitted their bio-data at the Judicial Council on November 22 and met the criteria.
According to the provision laid down in the Constitution, those who have worked as a district judge or as a senior advocate for a minimum of five years can meet the criteria.
Similarly, those who have worked as an advocate for 10 years or those as a researcher or an academician in the legal field for five years or someone with work in the capacity as a gazetted officer for five years under justice group are qualified to be judges at the High Courts.
“It is impossible to satisfy all but what I can say is that this is the best choice. This is free and fair,” said Law and Justice Minister Nayak. “Since this is a party government, it is natural for us to select the persons close to our parties. CPN-UML had also done a similar thing when it headed the government.”
The process of politicization of judiciary started following 2006 and it is at a climax following the promulgation of new constitution by Assembly dominated by communists.
India’s renowned constitutional lawyer Ram Jethmalani once said in 1973 about making the difference on value of judiciary for democrats and communists. He gave two examples of how democratic and authoritarian parties see the essence of judiciary.
For democrats, an independent judiciary is an indispensable requisite of a free society under the Rule of Law. Such independence implies freedom from interference by the executive or legislature with the exercise of the judicial function.
For the communists, the Supreme Court is subordinate to the legislature and executive and has no right to declare a law unconstitutional or to recognize any limitation upon the legislature or the executive on the ground that some higher or paramount law has been violated or those freedoms of citizens are suppressed.
One can distinguish Nepal’s current situation by looking at those statements. There is a continual intervention of executive and legislative in the appointment of judges and other procedures since 2006, claiming the political parties are supreme in state affairs like in totalitarian states.
“Totalitarians assert that the party and the state are identical with society and coextensive with it, that all the purposes of party and state are identical with the purposes of society and that society can have no purposes. Therefore it denies autonomy to the individual, his private purpose, his judgment, his conscience, his moral responsibility,” writes another scholar, Bertram D.Wolfe.
Given Nepal’s current political trends where political parties dominated by communists overriding the power of people and intervening the judiciary and its appointment process, the threat is going to democratic rights and freedom of people. Only an independent judiciary can guarantee the rights of the people.