The April 23 decision of the Judicial Council to recommend eight names of the appeal court senior judges for the Supreme Court appointment has run into controversy. The Parliament of Nepal is set to conduct hearing amidst criticism of Judicial Council by a section of media and lawyers over some of the nominees. These recommendations can only be blocked through a two-third majority in Parliamentary Hearing Special Committee. There is, however, a controversy whether the Parliament should reverse the decision. In light of this, on May 5, SPOTLIGHT interviewed Dr Bipin Adhikari, a senior constitutional expert and the Dean of Kathmandu University School of Law on the controversy, and sought his views on what is the correct approach. Excerpts:

What is the rule of the Constitution on parliamentary hearing of Supreme Court judges?

The rule is provided for by Article 155(1) of the Constitution. It states that judges of the Supreme Court shall be appointed only after parliamentary hearing. While hearing has been a compulsory requirement, the Constitution does not say that the parliament has the power to undo the recommendation for appointment, or issue strictures that it considers best. It only states that parliamentary hearing has to be done “in accordance with the provisions of the law.”

What are the provisions of the law then?

No such law has been enacted so far. It is only the Constituent Assembly (Conduct of Parliamentary Business) Rules 2070 which prescribes procedures that should apply in parliamentary hearing. It is these procedures which state that the Parliamentary Hearing Special Committee in the Parliament can reject recommended judges by a two-third vote, and send back this notice to the Judicial Council to dispatch another recommendation.

So, do you suggest that these 2070 Rules overstep the mandate of Article 155(1) of the Constitution?

Nowhere does the Constitution maintain that the power to appoint Supreme Court judges is shared by the Judicial Council with the Parliament. There is no legal framework for this. Furthermore, the 2070 Rules are in stark contrast to the principle of "Separation of Powers."

If that is your logic then why should there be any hearing at all? Does this formality serve any purpose?

Article 155(1) of the Interim Constitution on parliamentary hearing is a faulty provision as far as Supreme Court Judges are concerned.

This provision was not necessary. The Parliament of Nepal is not a Parliament under the presidential system of government. For example, it is not the Senate of the United States (US), or it's Judiciary Committee. In the US, unlike in Nepal, the nominations for judicial appointments aremade by the president, and not an entity like Judicial Council, and are transmitted by message to the Senate. The Senate Judiciary Committee, then, begins the consideration of a nomination by gathering more information about the individual nominated. The nomination of federal judges is subject to a committee hearing, during which the nominee and others testify. Unsuccessful nominations typically die from inaction. These are the activities that the Judicial Council itself is or should be entitled to in Nepal.

But why should there be a problem when the Parliamentary Hearing Special Committee does so?

Nepal is a parliamentary democracy. A government is formed in Nepal by the majority in parliament. As such, it is accountable to the parliament in everything it does. As long as the government commands the confidence of the house, it decides the agenda of the house. It is the government which controls the parliament in normal times. They work in tandem with each other. The relationship between government and the parliament are very often symbiotic. In that regard, it is clear that when you allow the parliament to have a say in the appointment of judge, by virtue of this, you give this say to the government. How can you defend independence of judiciary in such a situation?

In that case, do you think there is no need of democratic mandate for judges?

The pre-appointment hearing in the parliament should not be acceptable for senior judges. Judicial appointment at this level should not be a game of majority and minority. It undermines the independence of those subsequently appointed. Yes, the legitimacy of judges does not depend on any democratic mandate. It depends on their merit and integrity.

Why do some democratic countries find parliamentary hearing important in that case?  

It depends on the nature of the political system a country has chosen. In the US, for example, the Senate has this power of confirmation hearing. But it does not form government. The government of the United States cannot control the official agenda of either house of American Congress. So, the system of confirmation hearing ensures checks and balances. In a parliamentary democracy, the system of parliamentary hearing boosts up government unduly at the expense of judiciary. It is antithetical to the doctrine of separation of power to create a situation that allows the government of the day to control the appointment of judges. Is it not for this simple reason that the Judicial Council was created in Nepal in 1990?

Then why did the Interim Constitution provide for parliamentary hearing in such indefinite terms?

This is tragic. Most of the framers of the 2007 constitution were not constitutional experts.  They had problems in the basic rules. They thought they knew everything. For some of them the parliamentary system was a sham. They wanted change, but had little commitment to upholding the rule of law.

So, what would be the best way to manage the current situation? Can you say ‘no’ to a constitutional provision?

It is enough on the part of the parliament to call these judges, hear them and wish them good luck with the new appointment. If it has issues it can write to the Judicial Council. The stakeholders who have problem with these judges should get back to the chief justice, or the Judicial Council, rather than the parliamentary hearing. It is the Judicial Council which has solution. I think the media has been very disingenuous. It is attempting to divert constitutional due course. It has been very provocative.

A section of the lawyers and most of the mainstream media think that many of these judges do not have integrity.

Maybe they know more than what I do. I do not want to comment on the integrity or efficiency of these judges on the media. All these judges have long experience in judiciary. They are not beginners. On the top of that they have been sitting judges for many years. If there are issues, it must be tackled in the Judicial Council itself and not through unconstitutional measures. They should not use partisan politics to discipline judges.

How should it be done?

Their appointment does not liberate them from the disciplinary jurisdiction of the Judicial Council. The Chief Justice of Nepal himself is the Chairperson of the Council. He is backed by another senior most judge in the Supreme Court. There is representation of the Council of Ministers, the government chosen jurist, and of the Nepal Bar Association. If something must be done about them, it is the Judicial Council which should take the responsibility. There are necessary laws and procedures. These issues could be handled well within the Council, and without breaking professional parameters.

If there is much pressure from the legal community, in the future, they can systematize vacancies, specify the criteria for appointment and publish diversity statistics, conduct pre-recommendation hearing, and operate in an open and transparent manner. It is the professional competence which must be central to the selection of judges.

Why do you think the media is dishonest?

The opinions that have been voiced seem to be much orchestrated. I am also shocked to see how the FM and community radios are being mobilized. They all have joined hands to discredit the Supreme Court. Even then I doubt these judges will be rejected by the parliament even upon hearing. A two-third back up is very unlikely in the Committee. There is a strong democratic block there which will defend the concept of independence of judiciary.

So why worry?

The worry is that the judges will be abused in the process, threatened behind the curtain, demoralized and finally confirmed for the appointment. By that time, these judges would have compromised much affecting their independence. This is what happened with all the prime ministers and their senior ministers during the last seven or eight years. It is the same design that is at work even now.

Don’t the lawyers have interest in the quality of judges selected?

Obviously, they have professional interest there. But do not forget that the lawyers who are making big stories are politically involved. Judges in the country should not be appointed through political patronage but rather through an independent institution, i.e. Judicial Council, as envisioned by the constitution. There is a need of concerted efforts to make sure that Judicial Council delivers what is expected of it. It is there that they need some reform.