Himalayan News Service
KATHMANDU: Stating that parliamentary hearing prior to the appointment of the Chief Justice worked against the principle of independence of the judiciary, the Supreme Court (SC) today directed parliament and the government to remove the provision from the future constitution.
Citing that such a provision might make a judge loyal to the government and power centres the chief justice, the apex court told the Constituent Assembly not to incorporate the provision of conducting parliamentary hearing prior to appointment of CJ, if the appointee already holds the post of justice of the SC.
A three-member special bench of Justices Bala Ram KC, Gauri Dhakal and Bharat Raj Upreti issued the directive, stating it would be meaningless to conduct hearing again and again for the same person — first, confirming him on an ad hoc basis and then confirming the permanent posting. The bench, however, upheld hearing for the post of other judges.
The bench also directed parliament and the government not to appoint former chief justices in public offices like Chairman and Commissioner of National Human Rights Commission as such appointments might again hinder the independence of the judiciary. “With the aspiration of getting a post after retirement, the CJ might not perform his or her duty and might also work to make power centres happy,” the bench observed.
The apex court today made public the full text of its verdict passed on April 2, specifying a number of shortcomings in the parliamentary hearing system, the bench issued a five-point stricture for necessary reforms.
It directed the House to reject any person by two-third-majority replacing the current provision of endorsing a proposal with a single member’s support as this provision made the hearing process ineffective. Challenging the hearing, advocate Subodh Man Napit had filed a PIL after the third constitutional amendment.
As per the current system, unanimous voting is required to reject any proposal and if even a member supports a candidate despite opposition from all others, it is assumed that he or she has been approved.
Saying that the provision for appointment of ad hoc judges in the Supreme Court was against the principle of independent of judiciary, the bench told the parliament and the government not to continue the provision in the future constitution.
In order to make the parliamentary hearing process effective, the bench said a separate judicial hearing committee had to be set up through a legal arrangement. It directed the authorities to manage different hearing committees keeping in mind the expertise required and the nature of work. The bench also directed that the contender’s knowledge of internationally accepted principles of justice, human rights and fundamental rights and the country’s legal system be tested along with the person’s accountability.