Judging the judge

Chief Justice Dilip Kumar Poudel retires on September 7. There are five judges of the Supreme Court who are eligible for appointment — Kedar Prasad Giri, Min Bahadur Rayamajhi, Anup Raj Sharma, Ram Prasad Shrestha and Khil Raj Regmi — as each of them has fulfilled the constitutional eligibility criterion of three years of service as apex court judge. But the practice in Nepal, as elsewhere in the democratic world, has been to promote the seniormost judge to CJ. Now, Yagya Murti Banjade, the attorney general, wants this practice to change. He has told THT that seniority should give way to “merit” and “clean image”, and the one who can “lead the judiciary through difficult times” should be chosen.

Banjade who will make his recommendation to the PM in the matter is likely to stick to his above-mentioned line. However, it is not clear whether this line was his own or he reflected his client’s mind. Whatever the case, the views of the government’s chief legal adviser on such an important issue have their implications. The public too wants to see the Chief Justice of the SC, the last resort of justice and sole interpreter of the Constitution, as a person with capability and flawless reputation. However, what constitutes merit and who determines it? The same question arises when it comes to ensuring that a candidate has a clean image. Behind the practice of taking only seniority into account is the logic that the appointments must not be politically influenced.

If Banjade’s line is accepted, it may very well open the door for political meddling in the judiciary. When the seniormost judge can be bypassed in the name of choosing somebody with “more merit” and “better public image”, it will promote the practice among the judges of currying favour with politicians and political parties, particularly the PM, in order to land the coveted job, in the process seriously weakening the concept of the checks and balances among the three branches of government. If the changes had to be made after Jana Andolan II, reforms should have been introduced in the judiciary on some sound basis. Important politicians, including the Prime Minister and the Speaker, had not been very enthusiastic about the idea of incorporating in the Interim Constitution the provision of re-appointing the judges. They even ignored the calls of the PAC for impeachment of certain SC judges. If they now saw merit in abandoning seniority, it would be unfortunate and provide room for suspicion of the government’s motives. Every judge, not just the CJ, should be above board, and great care should be taken in the selection of anybody to the post of an apex court judge, considering the possibility that he will be the CJ one day. The Constitution lays down clear criteria for removing judges who cannot live up to their duties properly. Otherwise, nobody should be allowed to prevent the seniormost judge from becoming the CJ. Anyway, it is the job of the parliamentary hearing committee to investigate whether one is fit for the job.