KATHMANDU: It is hard to believe that the Karnali Zone does not have a single judge. Even though this is the ground reality, Minister for Law and Justice Prem

Bahadur Singh considers this as an exception. If the zone had a lawyer or judicial

officer, then s/he would have certainly been appointed as a judge.

Pegged to this concept, the Judicial Council adopted the principle of inclusiveness as far as the recent appointment of judges in the district and appellate courts is concerned.

The Minister, however,

expressed his doubt about inclusiveness. “The judicial standard may become a casualty since merit isn't the criteria,” he reasoned.

In a historic first, Ratna Bahadur Bagchand and Satya Mohan Joshi Tharu, who represent the Dalit and the Tharu caste and community, respectively, were appointed as judges of the appellate courts on September 6. Bagchand, a lawyer, was running an NGO prior to his appointment. While, Tharu used to practice in a court. This time around, 14 advocates, including two women — Neeta Gautam Dixit and Saranga Subedi — were appointed to the prestigious posts. Dixit was a lawyer in the Kathmandu Valley. While, Subedi was working in Pokhara. Two law teachers —Bidur Bikram Thapa and Dwarika Man Joshi — too, got the opportunity. But critics are vocal about the policy of inclusiveness. Criticism has been levelled against lawyers for making use of political quota to further their career as judges. Political loyalty determined the appointment to high offices. The quota system also does not augur well for judicial independence.

On September 6, the Judicial Council appointed 47 judges for appellate and 27 for district courts.

Four special class and six first class judicial officers were also appointed as judges in the appellate courts. While, for the districts courts, judicial officers and government lawyers were chosen.

“All those who were in contention got appointed in the appellate courts,” said Shambhu Thapa, a noted lawyer, at a programme, organised by the Supreme Court Bar Association, on September 11. The Judicial Council has been in the eye of the storm since its inception in 1990. It has been bedevilled by controversy over the

appointment of judges, especially for selection of lawyers, who owed their allegiance to the Nepali Congress and the CPN-UML.

Bu, in the recent round of appointments, it has also been allegedly biased to a

section of lawyers, who are

reportedly known as Unified-CPN-Maoist sympathisers.

In the light of the present scenario, it has become virtually impossible to become a judge unless the lawyer in question does not have any political affiliation of

consequence.

The lawyers have termed the appointments as biased since the Judicial Council did not adhere to Article 109(2) of the Interim Constitution. Though the

Judicial Council wanted to meet popular expectations, the transparency of the

exercise is open to question.

All those eligible lawyers —in the running for the appointment of judges in the district courts — and lost out in the end are crying foul. The appointments were allegedly not above board even though representatives of the Nepal Bar Association and the Prime Minister were made part of the Judicial Council's exercise. “The Judicial Council didn’t appoint judges on the basis of their performance. Merit should have been the sole yardstick. The appointments were largely made to strike a political balance,” said Hemanta Rawal, general secretary, Judiciary Officers’ Society.

Constitutional provision ON judges’ appointment

• Article 109 (2): Any Nepali citizen, who is a law graduate and has worked as a district judge or worked in any post of gazetted first class of the Judicial Service for a period of at least seven years; or holds a Bachelor's degree in law and has

practiced as a senior advocate or advocate for

at least 10 years; or has taught law or conducted research; or has worked in any other field of law or justice for at least 10 years, is eligible for appointment as chief judge or other judge of an

appellate court.

• 109(3): Any Nepali citizen, who is a law graduate and has worked for at least three years as a gazetted second class officer in the Judicial Service; or a law graduate, who has practiced law for at least eight years in his career, is eligible for appointment as a district court judge.

• 109 (4): An individual, who has passed the written and oral examinations conducted by the Judicial Council, shall be appointed upon adherence to

Article 109 (3) of the Interim Constitution.The examination system and other procedures shall be as prescribed by the law.