SC split on picking judges sans parliamentary hearing
KATHMANDU: The Supreme Court today issued a split judgment on whether to appoint justices in the apex court without parliamentary hearing as Parliament does not exist.
With the division bench of justices pronouncing a split judgment, it is clear that five ad hoc judges will retire on Wednesday and one on January 21 when their contracts finish.
The bench transferred the case to a full bench of more than three justices as they could not settle the issue.
The tenure of ad hoc judges Baidhya Nath Upadhayay, Tarka Raj Bhatta, Gyanendra Bahadur Karki, Kamal Narayan Das and Bharat Bahadur Karki is expiring on December 5, while Prakash Osti will retire on January 21. Ad hoc judge Bharat Raj Upreti has already resigned.
Sources said some ad hoc judges are considering resignation before their term expires. Justice Osti, however, said he is not worried about the consequences. “I don’t care what should be done and what the JC will do,” Osti told The Himalayan Times. An informal emergency meeting of the JC at Chief Justice Khil Raj Regmi’s residence, which Prime Minister Baburam Bhattarai attended, discussed the matter. “The PM assured us he would try to issue an ordinance and also forge consensus among political parties,” JC member Khem Narayan Dhungana said. Regmi, however, refused to elaborate. “We are still considering what should be done,” he added.
Stating that Article 155 (1) of the Interim Constitution, according to which parliamentary hearing prior to appointment of Supreme Court justices is mandatory, Justice Shah declined to issue mandamus order to the JC to appoint judges without parliamentary hearing. He also pointed out errors of the writ petitioner who demanded the order but did not make the Chief Justice, who is the appointing authority, defendant. Besides, he stated that both the demands for tenure extension for ad hoc judge or appointment without parliamentary hearing were unconstitutional.
“Since the Judicial Council itself is competent enough to decide, there is no need to issue order in the name of JC,” Shah said. According to him, the JC can decide to recommend.
Justice Lal, however, issued a directive order in the name of JC to fill vacancies in the Supreme Court by informing the Parliamentary Hearing Special Committee, keeping in mind the qualifications of the ad hoc judges and other qualified persons to take decisions.
In his dissenting opinion, Justice Lal stated there was no possibility of parliamentary hearing in the absence of parliament and there was no guarantee a new parliament would be formed at the earliest. Hence, the provision of parliamentary hearing as per Article 155 cannot be effective.
Full bench not possible: JC member
KATHMANDU: JC member Khem Narayan Dhungana said the Supreme Court verdict has further complicated the issue. “We were waiting for the bench to give a way out but it did not. Instead the crisis has worsened because the apex court cannot decide the case,” Dhungana added. There must be three justices to test the issue, but Chief Justice Khil Raj Regmi and senior justice Damodar Prasad Sharma cannot test the issue because they represent the JC, which itself is the defendant in the case. Justices Ram Kumar Prasad Shah and Girish Chandra Lal cannot share the bench either because they have expressed their opinion in Sunday’s verdict. The remaining two justices Kalyan Shrestha and Sushila Karki are not sufficient to form a three-member full bench. Constitutional expert Tikaram Bhattarai said the issue has become more complicated and no authority can decide when the case is referred to the full bench.
With the division bench of justices pronouncing a split judgment, it is clear that five ad hoc judges will retire on Wednesday and one on January 21 when their contracts finish.
The bench transferred the case to a full bench of more than three justices as they could not settle the issue.
The tenure of ad hoc judges Baidhya Nath Upadhayay, Tarka Raj Bhatta, Gyanendra Bahadur Karki, Kamal Narayan Das and Bharat Bahadur Karki is expiring on December 5, while Prakash Osti will retire on January 21. Ad hoc judge Bharat Raj Upreti has already resigned.
Sources said some ad hoc judges are considering resignation before their term expires. Justice Osti, however, said he is not worried about the consequences. “I don’t care what should be done and what the JC will do,” Osti told The Himalayan Times. An informal emergency meeting of the JC at Chief Justice Khil Raj Regmi’s residence, which Prime Minister Baburam Bhattarai attended, discussed the matter. “The PM assured us he would try to issue an ordinance and also forge consensus among political parties,” JC member Khem Narayan Dhungana said. Regmi, however, refused to elaborate. “We are still considering what should be done,” he added.
Stating that Article 155 (1) of the Interim Constitution, according to which parliamentary hearing prior to appointment of Supreme Court justices is mandatory, Justice Shah declined to issue mandamus order to the JC to appoint judges without parliamentary hearing. He also pointed out errors of the writ petitioner who demanded the order but did not make the Chief Justice, who is the appointing authority, defendant. Besides, he stated that both the demands for tenure extension for ad hoc judge or appointment without parliamentary hearing were unconstitutional.
“Since the Judicial Council itself is competent enough to decide, there is no need to issue order in the name of JC,” Shah said. According to him, the JC can decide to recommend.
Justice Lal, however, issued a directive order in the name of JC to fill vacancies in the Supreme Court by informing the Parliamentary Hearing Special Committee, keeping in mind the qualifications of the ad hoc judges and other qualified persons to take decisions.
In his dissenting opinion, Justice Lal stated there was no possibility of parliamentary hearing in the absence of parliament and there was no guarantee a new parliament would be formed at the earliest. Hence, the provision of parliamentary hearing as per Article 155 cannot be effective.
Full bench not possible: JC member
KATHMANDU: JC member Khem Narayan Dhungana said the Supreme Court verdict has further complicated the issue. “We were waiting for the bench to give a way out but it did not. Instead the crisis has worsened because the apex court cannot decide the case,” Dhungana added. There must be three justices to test the issue, but Chief Justice Khil Raj Regmi and senior justice Damodar Prasad Sharma cannot test the issue because they represent the JC, which itself is the defendant in the case. Justices Ram Kumar Prasad Shah and Girish Chandra Lal cannot share the bench either because they have expressed their opinion in Sunday’s verdict. The remaining two justices Kalyan Shrestha and Sushila Karki are not sufficient to form a three-member full bench. Constitutional expert Tikaram Bhattarai said the issue has become more complicated and no authority can decide when the case is referred to the full bench.
Sabaikhabar.com
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