Appointment ordinance at chief justice's request

ANANTA RAJ LUITEL

KATHMANDU: What appears to be a quid pro quo, the government has prepared an ordinance for the appointment of Supreme Court Justices, heads and members of constitutional bodies and ambassadors without the mandatory parliamentary hearing at Chief Justice Khil Raj Regmi’s request.

Once the ordinance comes into force, both the government and the judiciary will benefit — the government will be able to appoint chiefs and members of the constitutional bodies and ambassadors and the Judicial Council will be able to appoint SC justices.

As many as 19 positions of SC justices out of total 25 will fall vacant in January, hence the CJ is learnt to have asked Prime Minister Baburam Bhattarai, who also looks after the law portfolio, to do the needful to avoid crisis in the judiciary.

The only six justices who will remain in the office will not be able to handle as many as 12,000 cases already under consideration in the apex court.

The ordinance will, according to sources, clear the hurdle of parliamentary hearing in the absence of Parliament. “The government initiative to bring the ordinance is based on CJ’s request,” a highly placed source in the judiciary told The Himalayan Times. “The Supreme Court is going to face a dearth of justices after January. So, there was no other option before the CJ than to request the prime minister,” he added.

The judiciary leadership had floated three options — invoking presidential power to bypass the parliamentary hearing, direct appointment (of justices) by JC, escaping the hearing process and bringing an ordinance. The government chose the last and the easiest option, said sources.

“The ordinance, we hope, will soon come into force after the President approves it,” Prakash Pundit, Under Secretary, Law Section, Prime Minister’s Office, said. Another source close to the prime minister said the prime minister would hand over the law portfolio to Finance Minister Barshaman Pun to facilitate judges’ appointment.

Legal experts say it will be the real experiment of the doctrine of necessity in the country. “This is the real test of the doctrine of necessity as this move will help save the judiciary from being vacant in the absence of Parliament,” former attorney general Sushil Pant said. “

Former president of Nepal Bar Association, Shambhu Thapa, however, opposed the idea, saying it would promote anarchy. “Those ad hoc SC judges who had gone through the parliamentary hearing can be given permanent appointment even without the hearing process,” said Thapa, adding that no new appointments can be made through an ordinance as such move will be against the fundamental features of the constitution. Invoking presidential power to remove difficulties will be the best option to avoid the vacuum in the judiciary, he said.