Controversy in Judicial Appointments: Is the Fault with the Judicial Council or the Chief Justice?
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Shortly after taking charge as Chief Justice on Ashadha 23, 2072 Vikram Samvat, Kalyan Shrestha expressed dissatisfaction during an interview with the structure of the Judicial Council responsible for appointing judges.
“The most capable individuals who can deliver justice, uphold judicial conduct steadfastly, must come as judges; they should be attracted and requested,” he said. “Although discussions were held about restructuring the Judicial Council to facilitate easier judicial appointments with a majority of judges on the council, these suggestions were not heeded.”
He implicitly criticized the provision where politically affiliated members dominate the Judicial Council responsible for appointing judges, leaving judges in the minority.
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According to the current 2072 Constitution, the Judicial Council chaired by the Chief Justice includes the Minister of Law and Justice, the most senior judge, a legal expert appointed by the President upon the Prime Minister’s recommendation, and a senior advocate appointed by the President on the recommendation of the Nepal Bar Association, totaling five members.
However, the 2047 Constitution, established after the restoration of multi-party democracy, provided for a Judicial Council dominated by judges.
Under that structure, chaired by the Chief Justice, the council included the Minister of Justice, two judges based on seniority, and distinguished legal experts appointed by the monarchy.
The interim Constitution of 2063, following the “Second People’s Movement,” reduced the number of judges by one and introduced a member recommended by the Nepal Bar Association representing senior advocates or advocates.
Khimlal Devkota, a member of the interim constitution drafting committee, recalls, “I opposed including a representative of the Bar in the judge-appointing body on the grounds that if judges accept bribes, the Bar should bear responsibility too. However, I was alone in this opposition.”
Is the Problem Within the Judicial Council or the Intent of Its Leadership?
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Devkota states that whether the system exacerbated corruption or not is uncertain, but it was not able to prevent it.
This raises the question: does the structure of the Judicial Council cause controversy in judicial appointments?
Former Supreme Court Justice B. N. Upadhyay does not entirely blame the council’s structure. He observes, “Neither the Bar Association is satisfied with judge appointments, nor do other judges or court staff. Hence, the Chief Justice must be strong and firm in his position because true power lies with the Chief Justice. However, they often reach compromises to bring judges aboard.”
Law professor Bipin Adhikari from Kathmandu University believes that disputes arise due to a lack of confidence and pride in the Chief Justice to exercise power effectively.
He argues that just as the executive branch is headed by the Prime Minister, the judiciary should be led by the Chief Justice.
“There may be structural issues, but the root problem lies in leadership. If leadership were strong, independent, and impartial, no one could interfere,” he says. “The Chief Justice should clearly assert his forum within the Judicial Council. There are no signs of the Chief Justice standing firm to appoint judges based on the highest merit rather than minimum criteria.”
Legal expert Devkota also points out that the problem is less in the structure and more in the culture.
He notes that many judges appointed by the historically judge-dominated Judicial Council later became controversial Chief Justices.
“I worry less about making courts respectable and more about judges’ quotas being allocated. Thus, I think changing the structure without changing the culture will not solve the problem,” Devkota says. “Now, the intention is to centralize appointments not only of the Chief Justice but for all judicial posts.”
The Source of Confusion: Direct Appointment as Chief Justice Without Serving as a Judge?
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Karki pointed out a trend where lawyers are being appointed directly as Supreme Court judges without progressing through the ranks to become Chief Justice.
According to experts, since the 2046 political changes, no one entered the Supreme Court and immediately became Chief Justice.
After the establishment of the republic, senior advocate Anup Raj Sharma joined the Supreme Court and served as Chief Justice for approximately three months. Sushila Karki, with a background in legal profession, served nearly one year, and Harikrishna Karki around one and a half months as Chief Justice.
Eight judges from judicial or High Court service backgrounds, from Sharma to Karki, have served as Chief Justice.
After Harikrishna Karki, it was the turn of ‘Cadre Judge’ Vishwambhar Shrestha.
Alongside Shrestha, permanent officers such as Balendra Rupakheti, Mohan Bahadur Karki, Premraj Dhakal, Gunraj Dhungel, and Gopal Bhattarai retired without serving as chief justice of the High Court.
Experts suggest that the rapid appointments of those going directly from lawyer to the Supreme Court and the pressure exerted by judges jumping administrative posts to the High and Supreme Courts have contributed to this situation.
Following Shrestha, over a decade has passed without a ‘Cadre Judge’ becoming Chief Justice, during which four judges from the legal profession entered the Supreme Court directly.
Current Chief Justices Manoj Kumar Sharma and Hari Phuyal also entered the Supreme Court before turning 50 years old without being senior advocates.
Post-changes, the practice of chief registrars becoming senior judges in High Courts or ascending to Supreme Court judges has accelerated. Some view this as a measure taken to counteract the lawyers directly jumping to the Supreme Court.
For about one and a half decades, this pattern of Supreme Court appointments during such intervals persisted, creating tensions within the Nepal Bar Association, leading to proposals limiting Supreme Court judges’ tenure to seven years.
The annual general assembly of the Bar in Surkhet concluded that tenure-based appointments have increased judicial disorder.
Constitutionalist Bipin Adhikari states, “There is a mentality that the incompetent should be considered senior and authoritative.”
Former Justice B.N. Upadhyay notes that the appointment of many junior individuals as judges has caused disappointment and dissatisfaction in the judiciary. Rules that assign positions below retired seniors for district judges have increased discontent among staff regarding seniority.
“Experienced district judges became inactive in reaching High Court postings while others rushed to the Supreme Court quickly. During this time, all chief justices retired—there were good and capable judges,” he said. “Dissatisfaction exists among judges, staff, and lawyers alike.”
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How to Resolve the Issue?
Former Chief Justice Kalyan Shrestha says judges should be appointed not just by passing tests but based on experience, ethics, and personality. “Even if thousands of judicial positions are created, judges cannot be produced overnight. Judges must be nurtured,” he said.
Similarly, former Justice Upadhyay believes lawyers should not be directly appointed as Supreme Court judges without prior judicial experience. He suggests courts should appoint judges based on their personality when the need arises to interpret new constitutions or laws.
“However, now lawyers declare, ‘I am on the path to becoming Chief Justice; only that is why I am coming.’ Not all appointed are bad; many fit within accepted limits,” he noted. “But it would be better if candidates did not enter the Supreme Court directly at the same time, because they lack judicial experience.”
Law professor Bipin Adhikari comments that the most qualified individuals lack open and free access to the judiciary. Due to unfavorable promotion conditions, the number of judges able to rise from district courts to High Courts and Supreme Court is decreasing.
“There is no vision to bring top officers from law and government attorney groups into the judiciary. Nor is there a system to channel talented legal minds from universities into the courts,” Adhikari says. “The Judicial Council lacks a list of the country’s best minds. Appointments are not transparent, and there is no trust that selections are clean.”
However, legal expert Devkota, with a political background, believes the influence is more political than structural.
He says he raised the issue of judge reappointments during the drafting of the interim constitution and now sees contradictions as a result. “Some arrange for themselves to become Chief Justice until 2090-92 BS, while others break that system to make their own path,” he observes.
“Thus, no good track record has been established,” Devkota suggests. “Arrangements for reappointments and independent competition could make a difference.”