KATHMANDU, Oct 7: Seniority has taken a back seat in the latest recommendations for Supreme Court (SC) justices, with the Judicial Council (JC) recommending a 16th-ranked high court judge while leaving several chief judges and senior judges out of the list.
The JC has recommended four judges, including a chief judge, for appointment to the apex court. They are Chief Judge of the High Court Pokhara Dr Ratna Bahadur Bagchand and High Court judges Chandra Prasad Saru, Janak Pandey and Gokarna Dangi.
The recommendations have bypassed several judges who ranked higher in the seniority list. Chief Judge of the High Court Rajan Prasad Bhattarai, Chief Judge of the High Court Patan Lal Bahadur Kunwar, Chief Judge of the High Court Surkhet Hari Prasad Bhandari and Chief Judge of the High Court Tulsipur Rajeshwor Tiwari were not recommended.
Among other high court judges, Dinesh Prasad Yadav, who ranked first, as well as Krishna Lal Bhattarai, Yamuna Bhattarai and Tek Narayan Kunwar, who also ranked ahead of the recommended candidates, were left out.
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Among those recommended for SC justices, Saru ranked fifth, Pandey 13th and Dangi 16th in the seniority list of high court judges. Notably, the JC has also not recommended anyone from the legal profession for the SC this time. In the past, appointments had included both chief judges and lawyers as part of an informal power-sharing practice.
Justice duo Malla and Nepal file notes of dissent
The recommendations have also exposed sharp divisions within the JC, with senior-most SC Justice and JC member Sapana Pradhan Malla and another member, Mahesh Nepal, filing notes of dissent.
Justice Malla questioned the process of recommending judges to an institution that serves as the final forum for protecting citizens’ rights against abuse of power. According to JC sources, she argued that such appointments should be made transparently and on objective grounds to strengthen public confidence in the judiciary.
Malla said bypassing evaluations and reaching informal agreements without establishing objective criteria was opaque, unscientific and unreliable, and inconsistent with the Constitution, the Judicial Council Act and established principles of justice.
Malla also questioned why junior judges were being recommended when serving chief judges and senior judges were available. She said proper reasons and grounds should be given for excluding judges higher in the seniority order, according to the sources.
She also objected to the absence of representation from the legal profession and said women and Madhesis had been overlooked in the recommendations. Arguing that the process was contrary to established procedures, Malla said she could not participate in or endorse it.
Nepal, meanwhile, recorded his dissent over the recommendations of Pandey and Dangi, according to JC sources.
JC Chair Chief Justice Dr Manoj Kumar Sharma, Law Minister Sobita Gautam and JC member Damodar Sharma supported the recommendations, the sources said.
The recommendations have also drawn criticisms from Nepal Bar Association (NBA), the umbrella organization of lawyers across the country. NBA President Professor Dr Vijay Prasad Mishra questioned the recommendations for excluding lawyers, Madhesis and women, saying the JC had ignored the principle of inclusion and continued its old practice without consulting the Bar.
Dr Mishra said the JC must take responsibility for its decision and that it would be unethical for the new government to keep talking about judicial reform.
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