Hearing committee faces real test in assessing judicial council recommendations

With two council members dissenting over seniority and inclusive criteria, the parliamentary panel's evaluation of the high court judges will test its commitment to an independent judiciary

KATHMANDU: The Parliamentary Hearing Committee has called for public complaints regarding the four individuals recommended for appointment as Supreme Court justices. Issuing a notice on October 26, the committee requested that complaints with clear grounds and evidence be submitted within 10 days if the proposed individuals are deemed unsuitable for appointment. With this, the hearing process for Ratna Bahadur Bagchand, Chief Judge of the High Court of Pokhara, and Chandra Bahadur Saru, Janak Pandey, and Gokarna Dangi, judges of the high courts recommended by the Judicial Council, has moved forward. According to the parliamentary committee’s notice, complaints can be submitted through the committee’s secretariat or the District Administration Office. This arrangement ensuring citizen participation is important. However, the real test of this hearing will not be in collecting complaints but in the evidence- and fact-based resolution of the questions raised regarding the Judicial Council’s selection itself.

After the Judicial Council recommended the names of the four judges on October 6, disputes arose regarding the transparency, seniority, and inclusiveness of the selection process. Nepal News published detailed news about this on October 11, according to which two members of the five-member council had expressed written dissent against the recommendations. Sapana Pradhan Malla, senior-most judge of the Supreme Court and council member, raised questions that the seniority order was flouted without disclosing sufficient grounds, the recommendations were not inclusive, and objective criteria for selection were not clear. Another member, Mahesh Kumar Nepal, expressed dissent over the recommendations of Pandey and Dangi. These dissents are not proof that the recommendations are automatically wrong. However, in a situation where members of a constitutional body itself have raised questions on the basis of the decision, it is not proper for the parliamentary committee to endorse it without examining them.

The Constitution of Nepal has distributed the responsibility of appointing judges among various constitutional bodies. According to Article 129, the President appoints Supreme Court judges on the recommendation of the Judicial Council. Article 292 provides for a parliamentary hearing prior to appointment. Section 5 of the Judicial Council Act, 2016, has made seniority, experience, subject-matter knowledge, efficiency, honesty, impartiality, professional and moral conduct, public reputation, and contribution made in the field of justice and law the basis for selection. There is also a provision that the proportional inclusive principle must be followed in recommendations. When the law has specified such clear bases, answers must be sought on how those criteria were applied in practice.