As Chief Justice Hari Prasad Sharma retires on July 28, somebody will have to fill the vacancy.
According to Article 87 of the Constitution, the King ‘shall appoint the Chief Justice of Nepal on the recommendation of the Constitutional Council.’ And Article 117 specifies a five-member Constitutional Council headed by the prime minister; the other members are the chief justice, the speaker of the Lower House, the chairman of the Upper House, and the leader of the Opposition in the Lower House. While recommending the appointment of the CJ, the Council also includes, among its members, the justice minister and a judge of the SC. The majority (i.e. three) of the core members do not exist, namely, the prime minister because the King acts as the chairman of the Council of Ministers; and the Upper House chairman and the opposition leader of the Lower House, as the parliament does not exist. Besides, Speaker Taranath Ranabhat is date-expired, as the normal five-year term of the dissolved House has already lapsed.
Therefore, a hot debate is emerging, with the pro-government legal experts, for example, attorney general Pawan Kumar Ojha arguing that as there is no alternative, the other members can make the recommendation. Other experts, including Speaker Ranabhat himself,
say that the Council cannot hold a meeting not headed by the Prime Minister. The Constitution
does not at all envisage a break in the prime ministerial continuity, as the Constitution is based on the prime ministerial system of governance. This is the letter and spirit of the Constitution. The debate also brings up questions as to who is responsible for the country having no prime minister, and when the sole justification for dissolving the House —i.e. to hold fresh general elections—collapsed, why the Constitution was allowed to derail. This issue tends to strengthen the case of the seven parties for the restoration of the Lower House, which is vital to make the Constitution fully operative. The debate also raises moral questions for CJ Sharma, a member of the Council, as the SC has kept pending a review petition seeking the restoration of the House for three years, despite the fact that a no-parliament situation has created some sort of constitutional anarchy.