SC justice appointment: JC member defends recommendations

KATHMANDU, MAY 02 - Amidst criticism of Judicial Council (JC) by the Nepal Bar Association (NBA) over the recommendation of some 'controversial' judges for the Supreme Court , one of the JC members Upendra Kesari Neupane has insisted that the selection was based on the best options available.

Neupane has argued that the council only forwarded those names which were recommended earlier to the appeal court by his predecessors, without exercising any discretionary authority.

The Kathmandu Post has obtained a draft of a letter prepared by Neupane, which he will hand over to NBA Chairman Hari Krishna Karki explaining the JC's position on the recommendations, possibly on Sunday. The constitutional body has already forwarded the names to Parliament for hearing.

In the letter, Neupane has argued that since the matter is now in the purview of Parliament, the "best option" would be to wait for its decision.

The controversy surrounding the recommendation has already landed in Parliament, with lawmakers questioning the idea of an independent judiciary on Tuesday during the zero hour. CPN-UML, the second largest party in the House, has hinted that it would block the entry of 'tainted' judges if the appointments go ahead.

The judges of the SC can be blocked only through a two-third majority in Parliament. Nepali Congress, the senior ruling party, has officially remained non-committal on the issue.  

The April 23 decision of the council to recommend eight names of the appeal court chief judges ran into controversy with the name of Cholendra Shumsher Rana.

In 2012, Rana was issued a judicial notice by the apex court for acquitting former Nepali Congress minister Jay Prakash Gupta from charges of corruption while he was judge at the Special Court in 2007. Subsequently, the apex court issued a judicial notice against Rana for "deviating from justice delivery."

The SC had then asked the JC to look into the matter. The constitutional body later gave a clean chit to Rana on 'technical ground' arguing that the judicial notice was not part of the main text of the verdict.

But others see the decision to acquit a judge of such a serious charge on 'technical ground' differently.

Former SC Justice Balaram KC said nobody has the right to interpret the verdict passed by the apex court. "What is to become of justice delivery if every implementing agency starts interpreting the apex court's ruling to their own liking?

"The very selection of candidates against whom the Supreme Court has issued remarks is itself controversial," said KC. He added that there was a possibility of appointing other judges a year ago when Acting Chief Justice Damodar Sharma had been given the authority of a full fledged chief justice.

On April 29, the NBA had urged the Parliamentary Hearing Special Committee (PHSC) to hold the JC to account for its 'controversial' selections.

The bar has called on the Parliamentary Committee to hold a proper investigation into the issue, as reported in the media regarding the recommendation, both of the nominees and their nominators. The bar said it would hold talks with the JC members Neupane and Khem Narayan Dhungana, without confirming the date.

For his part, Neupane has taken a swipe at the NBA for failing to maintain consistency in its position. "The two statements issued on April 23 and April 29 seem to have different objectives," he said in the letter. The bar on April 23 had simply noted in its statement that the JC failed to incorporate names of lawyers while recommending judges. But in its statement of April 29, the lawyers' body blamed the JC for delaying the appointments for over three years and recommending 'tainted' candidates while overlooking other eligible candidates.