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“Imbalance of powers.”

4th April 2019,

The Judicial Council on Tuesday recommended five names—two from among High Court chief judges and three from among advocates—to fill the vacant positions of justices at the Supreme Court. It also recommended 18 High Court judges. But as soon as the names were announced, the council’s decision was roundly condemned by many senior advocates. Out of the five names recommended for the Supreme Court, two names, senior advocate Kumar Regmi and advocate Hari Phuyal, have been mentioned as probable candidates for the post of chief justice.

On closer examination, both Regmi and Phuyal seem to be close to the Nepali Congress and the Nepal Communist Party respectively. What’s more, all the other recommended names too seem to have some connection with either the ruling or the opposition party, making the politicisation of the judiciary a recurring problem. Eroding norms and conventions on how judges are appointed to the Supreme Court will do irreparable harm to democracy.

And as if politicisation was not enough, there have been accusations of nepotism too. For example, Manoj Sharma, who has been nominated as one of the 18 judges, is the nephew of former chief justice Damodar Sharma. Sharma’s tenure as chief justice was infamous for making controversial decisions. When he was in power, Damodar Sharma had appointed Manoj Sharma as an additional judge in the Supreme Court—a post from which he was later removed. Other examples of nominated names that enjoy close relations with political leaders include Neelam Poudel, who is the niece of Deputy Prime Minister and Minister of Defence Ishwar Pokhrel; and Navaraj Thapaliya, who is the son-in-law of former chief justice Mohan Prakash Sitaula.

Such politicisation and nepotism in our judicial system is now new, however. It has been going on since the 1990s. This is because, for starters, the formation of the Judicial Council itself is questionable. Out of its five members, three are political in nature. Given this, it is obvious that the judiciary will not be insulated from executive interference. Anyone who is appointed to the Supreme Court in any capacity needs to be guided by conscience. But such interference makes it difficult to do so. For instance, when Gopal Parajuli was the chief justice, he had promoted Nahakul Subedi, initially a joint registrar, to chief judge in just a matter of two years. Clearly, Parajuli was abusing his power to fulfil vested interests.

It goes without saying that the danger of an executive encroaching upon the appointment process jeopardises the independence of thejudiciary. To be clear, the independence of the judiciary is sacrosanct. Thoughtless tinkering can tip the balance, which will have disastrous consequences for a constitutional democracy. The judiciary, or the third branch of the government, provides an opportunity for checks and balances. But on the path to consolidate power, letting this opportunity go will have debilitating effects on democracy.