ANANTA RAJ LUITEL
KATHMANDU: At a time when discussions are on to fill vacant positions in the judiciary without parliamentary hearing, the Supreme Court and the Judicial Council do not see eye to eye on the criteria for appointing judges.
A Judicial Council source said the Supreme Court has breached the jurisdiction of the JC while reviewing the criteria proposed in the second amendment bill of the Judicial Council Act.
He said the SC overstepped the criteria set by the JC when it forwarded the bill to the Ministry of Law and Justice which later sought legal opinion from the court on the amendment to the Act.
Immediately after receiving the draft of the bill, the ministry forwarded the same to the SC for approval. In order to scrutinise the criteria for juddges’ appointment, a full meeting of the apex court had formed a three-member examining committee.
The JC had proposed that no one convicted of contempt of court, defamation, human rights violation, and deemed insolvent, tax defaulters, those convicted in accordance with the Election Act and of abuse the public post be appointed.
The SC-formed committee was however sharply divided on the criteria. Justices Ram Kumar Prasad Shah and Justice Kalyan Shrestha upheld the JC proposal but Justice Sushila Karki opposed it according to a source at the apex court.
“The recommendation of the justices has already been forwarded to Chief Justice Khil Raj Regmi,” the source added.
Justices Shah and Shrestha did not feel there was need to change the criteria proposed by the Chief Justice and senior justice Damodar Prasad Sharma from the JC, but Justice Karki opposed them stating that they intended to bar lawyers from holding judgeship.
“The discussion has raised a serious question whether the full court meeting overstepped the jurisdiction of the JC, superseded the Supreme Court verdict and also created conflict of interest among ad hoc judges,” JC member Upendra Keshari Neupane told The Himalayan Times.
He also added that the JC forwarded the criteria keeping in mind the judgment of a division bench of Justices Bala Ram KC and Ram Kumar Prasad Shah barring advocate Shakuntala Thapa who was convicted of contempt of court, but the full court has been considering it with the participation of ad hoc judges themselves.
“How can they participate in the meeting at a time when the matter is also related to them,” he said adding, “If such a situation exists, there is no need of the JC,” he added. Neupane also pointed that a larger bench may overrule the judgment, but the full court meeting does not have such an authority.
Supreme Court assistant spokesperson Hemanta Rawal, however, said personal view of any judge may not contain the major decision in this case. “No matter who took what stance in the committee, the full court will take the final decision,” Rawal said adding, “Wait the decision of the full court which will settle all the questions.”