{"id":27584,"date":"2026-10-16T10:07:12","date_gmt":"2026-10-16T04:22:12","guid":{"rendered":"https:\/\/eng.dragonmedia.com.np\/?p=27584"},"modified":"2026-10-16T10:07:12","modified_gmt":"2026-10-16T04:22:12","slug":"the-test-of-a-politically-independent-judiciary-lies-in-the-appointment-process","status":"publish","type":"post","link":"https:\/\/eng.dragonmedia.com.np\/?p=27584","title":{"rendered":"The Test of a Politically Independent Judiciary Lies in the Appointment Process<\/strong>"},"content":{"rendered":"

Rajendra Sharma<\/strong><\/p>\n

Keeping the judiciary free from politics is more than an appealing campaign slogan. It is a democratic commitment to keeping state power within the limits of the law. Questions raised over judicial appointments should therefore be examined neither solely in favour of nor against any one party. Who is appointed matters, but so do the selection process, the criteria applied and whether the reasons for the decision are made public.<\/p>\n

In its election manifesto, the Rastriya Swatantra Party (RSP) pledged to end party influence and power-sharing in judicial appointments and to establish a system based on merit and competition. Against that backdrop, the Judicial Council\u2019s recent recommendations for Supreme Court appointments have drawn public scrutiny. On October 6, the Council recommended Pokhara High Court Chief Judge Dr Ratna Bahadur Bagchand and High Court judges Chandra Bahadur Saru, Janak Pandey and Gokarna Dangi for appointment to the Supreme Court. Council members Sapana Pradhan Malla and Mahesh Kumar Nepal expressed disagreement with the process. The Nepal Bar Association also questioned the lack of publicly stated criteria, seniority considerations and inclusiveness. The Parliamentary Hearing Committee\u2019s call for complaints has moved the dispute from the recommendation process to the stage of public accountability.<\/p>\n

Yet some of the commentary on the nominations must be separated into facts and conclusions. A judge\u2019s past association with a political or legal organisation does not, by itself, prove that the judge is biased. Nor can a judge\u2019s competence or impartiality be conclusively determined by a single ruling. If a judicial decision is disputed, there are avenues for appeal, review and legal criticism. Allegations of personal connections or political favour are serious and should be examined against evidence, records and the response of the people concerned. Presenting claims from unnamed sources as established facts can make the debate over judicial reform unjust in its own way.<\/p>\n

Another part of this debate concerns the appointment of the Chief Justice. In May, the Constitutional Council recommended Dr Manoj Kumar Sharma, who was fourth in the seniority order of the Supreme Court, for the post. The decision prompted questions about departing from the established practice of following seniority. But the appointment of the Chief Justice and the appointment of other Supreme Court judges are not the same process. Under Article 129 of the Constitution, the Chief Justice is appointed by the President on the recommendation of the Constitutional Council, while other Supreme Court judges are appointed on the recommendation of the Judicial Council. The Prime Minister chairs the Constitutional Council; the Chief Justice chairs the Judicial Council. Conflating these separate constitutional processes obscures who is responsible for which decision.<\/p>\n

The question of seniority must also be considered within this legal and constitutional framework. The Constitution requires a person to have served as a Supreme Court judge for at least three years to be eligible for appointment as Chief Justice. It does not expressly require that the most senior judge automatically become Chief Justice. However, the long-standing practice of appointing the most senior judge has served as a safeguard against political interference and as a means of maintaining institutional continuity. That practice can be departed from, but the reasons for doing so must be clear and objective. The word \u201cmerit\u201d alone is not enough. The public needs to know what qualifications were assessed, how they were measured and why the selected candidate was considered better qualified than others.<\/p>\n

Seniority alone is not the final criterion for appointing other Supreme Court judges either. The Judicial Council Act requires the Council to consider seniority alongside experience, subject knowledge, efficiency, integrity, impartiality, professional and moral conduct, reputation in public life, and contribution to justice and law. The Act also requires adherence to the principle of proportional inclusion. This does not mean the Council can never recommend candidates who are lower in seniority. It means the Council should explain why it has done so. The central issue in the current dispute is not only whether the recommended candidates are qualified. It is also whether the criteria, evaluation method and assessment of seniority and inclusion have been made clear.<\/p>\n

The debate over whether some candidates hold only a bachelor\u2019s degree in law while others have postgraduate degrees should also be grounded in fact. The Constitution recognises, among other routes to eligibility for the Supreme Court, a bachelor\u2019s degree in law combined with at least five years\u2019 service as a High Court chief judge or judge. A postgraduate law degree is not mandatory. It would therefore be wrong to declare a candidate ineligible solely because they lack a postgraduate degree. At the same time, meeting the minimum constitutional qualification does not prove that a candidate is the most qualified. The public should be able to understand how the Council compared candidates\u2019 judgments, case management, legal knowledge, impartiality, conduct and institutional contributions.<\/p>\n

The debate over inclusion, too, should not be reduced to counting names or groups. Article 42 of the Constitution guarantees participation in state structures in accordance with the principle of inclusion. The Judicial Council Act incorporates proportional inclusion into appointment recommendations. The fact that all four recommended candidates are men does not, by itself, prove a constitutional violation. It does, however, raise a legitimate question: how did the appointment process address the representation of women and historically marginalised communities? Had the Council provided reasoned information on the pool of potential candidates, the eligible groups represented and its assessment of inclusion, the debate would rely less on speculation.<\/p>\n

Allegations of political influence cannot be established simply by listing a candidate\u2019s political affiliations or past associations. Membership in a lawyers\u2019 organisation and acting on a party\u2019s instructions after becoming a judge are not the same thing. Calling someone \u201ca party\u2019s person\u201d without evidence can itself become a form of pressure on judicial independence. However, credible evidence of a conflict of interest, a close family or business relationship with an appointing official, or unusual access to the decision-making process should be examined publicly. Trust requires the same standard in either direction: an allegation is not proof of guilt, but appointments to public office must withstand transparent scrutiny.<\/p>\n

International standards also emphasise this balance. The United Nations Basic Principles on the Independence of the Judiciary call for safeguards against improper motives in the selection of judges and for the selection of people of integrity, ability and appropriate legal qualifications. These principles do not replace Nepal\u2019s constitutional provisions; they offer a shared benchmark for assessing the credibility of the appointment process. Appointments must be free from political control, but the judiciary cannot stand outside public accountability. Accountability does not mean placing judges under arbitrary instructions from the government or Parliament. It means making the grounds for appointments transparent and open to scrutiny.<\/p>\n

The Parliamentary Hearing Committee has invited complaints against the four nominees. This stage should not become a vehicle for political retaliation or a rubber stamp. The Committee should impartially examine the evidence submitted, give nominees an opportunity to respond and provide reasoned conclusions. Its role is not to overturn the Judicial Council\u2019s decision according to political preference; it is to fulfil its constitutional responsibility to conduct hearings. The Judicial Council, in turn, cannot avoid public questions by saying that the decision falls within its authority.<\/p>\n

Future appointments require clear and public measures for assessing qualifications. Judicial performance should not be judged solely by the number of cases disposed of or the proportion of decisions upheld or overturned; those figures need to be assessed in context. The Council should record how it weighed experience, legal expertise, impartiality, conduct, performance and inclusion. Rules requiring members to disclose possible conflicts of interest and, where necessary, recuse themselves should also be strengthened. The right of a majority to decide, combined with a record of dissenting views and a response to them, can strengthen institutional trust.<\/p>\n

A politically independent judiciary is not a gift from any government. It is built through the Constitution, impartial procedures and public trust. The RSP\u2019s promise has become a test of its own leadership amid the current appointments dispute. But responsibility does not rest with one party alone. The Judicial Council, the Constitutional Council, the Parliamentary Hearing Committee, the Bar and judicial leadership must all carry out their roles transparently. Seniority alone is not merit; a postgraduate degree alone is not competence; and an allegation of political ties alone is not proof of bias. But a selection made without clear criteria will invite suspicion. It is not enough for the judiciary to appear independent; the appointment process must also be demonstrably impartial, inclusive and reasoned. That is the real test of a politically independent judiciary.<\/p>\n

Fact-checking basis: Nepal\u2019s Constitution, the Judicial Council Act, reporting on the recent recommendations and dissents, parliamentary hearing updates, and the United Nations Basic Principles on the Independence of the Judiciary.<\/p>\n

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