Nepal | March 31, 2020

Bar JC members from becoming judges: NBA

Himalayan News Service

Kathmandu, December 6

Representatives of the Nepal Bar Association today met Deputy Prime Minister and Minister of Law, Justice and Parliamentary Affairs Upendra Yadav and urged him to expedite the process of amending the Judicial Council Act to bar JC members from becoming judges.

NBA move comes hot on the heels of former JC member Padam Prasad Baidik’s bid to win nomination for Supreme Court justice. He had resigned from the JC yesterday hoping to be nominated as Supreme Court justice, but members of the JC could not agree on his name yesterday.

According to General Secretary of NBA Lilamani Paudel, DPM Yadav told NBA representatives that he opposed the proposal to nominate Baidik as SC justice yesterday, but since his name was recommended by a powerful person, he might not be able to stop his nomination in the next meeting.

Paudel said the NBA wanted to amend the JC Act as in the last seven-eight years, JC had recommended people with minimum qualification for judges.  “Only people with extraordinary qualification and clean image should be appointed as judges. Candidates should be known for their integrity, but the JC has been indulging in nepotism and favouritism while nominating judges,” said Paudel.

He added, “The JC Act should be amended to ensure that once somebody serves as a member of JC, s/he should not be allowed to become a judge or practice law.”

He said nominating JC members as judges went against the principle of natural justice. “How can a person who nominated judges in
the past create an environment for himself to be nominated for SC justice?” Paudel wondered.

Paudel said the NBA had been trying for the past one year to secure amendment to the JC Act, but Cabinet reshuffle had adversely impacted its bid to amend the act. “After repeated attempts we had convinced former minister of law, justice and parliamentary affairs Bhanu Bhakta Dhakal about the need to amend the JC Act, but after the Cabinet reshuffle Upendra Yadav has become new law minister. I do not know how long will it take for the NBA to convince him for the amendment,” Paudel added.

He said Yadav believed that those who had served as JC members should not be appointed as judges.

Yadav could not be contacted for his comments.

Senior Advocate Chandra Kanta Gyawali said independence of judiciary could only be maintained if the structure of the JC, where executive was in a position to maintain its majority, was changed. “The executive has its majority in the JC. Of the five JC members, three — minister of law, justice and parliamentary affairs, a member nominated by the prime minister and a member nominated by the NBA — can be easily influenced by the executive,” Gyawali said. He added that the JC should be able to make appointments fairly. “If judges are not appointed purely on the basis of merit, we cannot expect them to play an impartial and neutral role while adjudicating cases,” he argued.

A version of this article appears in print on December 07, 2019 of The Himalayan Times.

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