Kathmandu, March 26
Legal experts have highlighted the need for structural reform in the Judicial Council.
Senior Advocate Harihar Dahal said the major reform needed was to ensure that the nominees of Nepal Bar Association and the prime minister for the Judicial Council would not be eligible for the post of judge after serving as JC members.
“We have seen NBA nominees with aspirations for Supreme Court Judgeship, which seems to be defeating the purpose of the law,” Dahal said, adding that he was one of the lawyers who played an important role in ensuring in the 1990 constitution that the NBA could send its nominees to the JC. This provision has been retained in the new constitution too.
Dahal said delay on the part of the NBA in nominating its representatives to the JC had defeated the purpose of the law. “NBA should send its representatives to the JC without delay or else the relevance of this provision cannot be justified,” he added.
Senior Advocate Bishwa Kanta Mainali said the stakeholders needed to enact new laws to fix the criteria for jurists who are nominated by the NBA and the prime minister.
“There should be fixed criteria for NBA and PM nominees. Any jurist who is a central committee member of a political party or has become a lawmaker representing a political party should not be nominated as JC member by the NBA or the PM,” Mainali added.
Advocate Chandra Kanta Gyawali said the JC should only have three members — chief justice as chair of the body, minister of Law and Justice and a representative from Nepal Bar Association as members. But if there must be five members in the JC as is the case now, there should be minister of Law and Justice, chief justice, attorney general and two jurists nominated by the NBA, Gyawali argued.
Minister of Law and Justice, he added, works as the representative of the prime minister in the JC and hence the PM does not need to appoint another representative. This way, he added, we can prevent the PM from nominating a political person.
“Under the present system, the senior-most Supreme Court Justice also becomes ex-officio member. We often see staff in the judiciary paying more attention to the senior most Justice than the CJ when the CJ only has a few months to serve,” he added, saying that in many countries where judicial appointments are made through the JC, the senior-most judge is not an ex-officio member of the body.
Advocate Bipin Adhikari said that the chief justice, by virtue of being the chair of the body, should have decisive power on the appointment of judges. He said the CJ should however make his decision after carefully considering the constitutional provision, particularly Article 42 of the constitution that ensures proportional inclusion. Adhikari said the CJ must make it clear that the nominees meet the required qualifications and they understand well the features of the new constitution such as federalism, inclusion and rule of law. If the CJ, he added, thinks that the Judicial Commission Act does not represent his thoughts he could clearly convey that to the stakeholders.
Adhikari said the Judicial Council’s decision should be based on clear principles.
A version of this article appears in print on March 27, 2016 of The Himalayan Times.