#Commentary

Delay in naming new CJ undermines morale at judiciary

May 2, 2018 06:30 AM Ananta Raj Luitel


KATHMANDU, May 2: More than a month and a half has already passed since then chief justice Gopal Parajuli was ousted from his post. But the appointment of a new chief justice looks uncertain still as the government does not seem to consider this a priority. 

Under a constitutional provision, the process of appointing a new CJ shall begin within a month of the top position in the judiciary falling vacant. The prolonged delay in the appointment has made it appear that the judiciary is helpless and dominated by politicians, according to experts . This situation makes one wonder  whether the prime minister, parliament and the politicians are committed to  the letter and spirit of the constitution, they added. 

The political leadership does not appear serious about abiding by  Article 284 (3) of the constitution,  which clearly stipulates that the process of appointment of the new CJ should  start within a month of the position falling vacant. In the absence of a CJ,   serious problems are beginning to   surface in the judiciary. 

Former president of Nepal Bar Association (NBA) and senior advocate Shambhu Thapa said politicians are not serious about adhering to the constitution.  “If this situation continues, it would give out a message that the powerful need not follow the constitution.” 
 The  general public may one day begin to question why they alone need to follow the constitution when those in power can afford to disregard it, Thapa said.  

The constitution  states that if such an office falls vacant because of death or resignation,  recommendations for the appointment of a replacement should be made so that the office is filled within one month, and that a sensitive institution like the judiciary should not remain under an acting head for too long .  

Meanwhile,  Prime Minister KP Sharma Oli's policy of zero tolerance for corruption could not come into effective due to similar delay in the appointment of the chief of the Commission for  Investigation of Abuse of Authority.    

Hearings in many constitutional cases have been deferred over the last one and half months and many other matters relating to the judiciary remain pending ever since the  then chief justice was ousted. The  appointment of judges and action against judges violating the code of conduct could not be expedited. 

“The function of the acting CJ is only to manage day to day affairs,” senior advocate Thapa said adding, “There is no real alternative to appoint a new CJ.”

Three names-- acting CJ Deepak Raj Joshee and Justices Om Prakash Mishra and Cholendra SJB Rana- were forwarded by the Judicial Council to the Constitutional Council, which is led by the prime minister. But the Constitutional Council has not yet begun the appointment process . 

“This [delay] has raised doubts,” Yadu Khanal, former president of Democratic Lawyers Association and senior advocate commented. “Even the judges are demoralized by the obtaining state of affairs.” 
 
 Minister for Law, Justice and Parliamentary Affairs Sher Bahadur Tamang has said that the appointment process for the new CJ would begin  and a decision forwarded for initiating  the process of parliamentary hearings. 

“I cannot give an exact date but the Constitutional Council will forward its decision so that the parliamentary hearings can be wound up within the second week of May,” Tamang said adding, “The appointment process has been delayed due to the delay in forming the parliamentary hearings committee and in finalizing the parliamentary rules.”  

Tamang is well aware of the adverse situation facing the judiciary but claims that they are exercising due deligence. “The acting CJ has the requisite powers and there should not be any problem  expediting case  hearings  and  deciding  other matters,” he added. “We are working on the appointment of judges in the lower courts, so any delay in the appointment of the CJ should not be an excuse for doing nothing.” 

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