After the Parliamentary Hearing Special Committee (PHSP) on Tuesday gave a divided verdict on whether to confirm Kedar Prasad Giri, who is now officiating as Chief Justice, for the post, the ball has bounced back into the court of the Constitutional Council (CC), which may either appoint him as CJ or make a new recommendation. According to the parliamentary regulations, the nominee for CJ, one of the posts subject to the recently introduced parliamentary confirmation process, has to win the support of all the members of PHSP present at the time of the vote, for his automatic confirmation. Similarly, for his automatic rejection, the unanimity of PHSP is required. Technically speaking, the divided vote – 11 against, 9 for, and 8 abstaining – has not clinched the issue. Now CC will have to make a final decision. If it goes again for Giri, he will become CJ without having to go through a fresh confirmation process. But a new nominee would have to go through it.
What should CC do? If it nominates the next senior SC judge in view of the controversy surrounding Giri’s credentials, then CC will save itself from unnecessary and harmful controversy, giving the hearing process a new meaning and relevance. Otherwise, the decision would have adverse implications not only for CC but also for the judiciary’s public image, which is far from satisfactory. The judiciary should meet two criteria to win full public faith – justice must be done and justice must be seen to have been done, too. Most members of the public will now be inclined to think that the first requisite will probably suffer if Giri is confirmed, judging by the nature of the charges against him, at least by the controversy his nomination has generated. Some of the charges are so serious that the majority of the PHSC members did not think him fit to lead the judiciary. Disrespect for parliamentary opinion would undoubtedly compromise the second essential quality of justice dispensation – public perception of it being done.
Therefore, the choice of CJ is not a question of a particular individual but of norms, values and its wider implications, including, most importantly, public perception. Most of the CC members are people who have promised to build a new democratic Nepal based on justice and equity. They must now weigh the effects of their decision – either way – on the system, institutions and values. Judging the fitness of any candidate for such a vital, prestigious and sensitive post as CJ should not be a matter of partisan voting at PHSC. Sadly, the voting pattern suggests that the MPs of the two Congresses went for him, and those of the Left parties, against him. This implies that PHSC has not formulated detailed criteria or guidelines on which to evaluate a nominee’s suitability for a given post. All nominees should be rigorously vetted if the system of parliamentary hearing is to retain its relevance. As his professional integrity has now run into controversy, Giri, like any self-respecting holder of high public office, would be doing great service to the judiciary by withdrawing his claim to the post.