Kathmandu, May 10: Tensions have escalated between the government led by Prime Minister Balendra Shah and the judiciary in Nepal. The Constitutional Council has nominated a Supreme Court judge, who ranks fourth in seniority, for the position of Chief Justice, leading to a significant clash between the two branches of government.
On May 7, Prime Minister Shah’s council recommended Justice Manoj Sharma for the Chief Justice role to President Ram Chandra Paudel. However, this nomination breaks a long-standing tradition in Nepal, where the most senior judge is typically appointed as Chief Justice.
Chairperson of the National Assembly Narayan Dahal and opposition leader Bhishma Raj Angdembe expressed their disagreement with this recommendation, emphasizing that the established tradition should not be disrupted.
Acting Chief Justice Sapna Pradhan Malla reacted strongly to the Constitutional Council’s decision, stating that there are attempts to bring the judiciary under government control. After a program marking the 74th National Law Day, Justice Malla remarked, “This is an attempt to transform the judiciary into an institution that surrenders to the executive body and compromises.”
She highlighted that the long-standing tradition of seniority has been broken and asserted, “It is not about who is affected, but rather an effort by the government to control the judiciary at its own discretion.”
The government claims that Sharma has demonstrated greater competence compared to other senior judges. In response, Justice Malla questioned the basis on which this competence was assessed, stating, “I am unsure how competence was tested. It should be evaluated through competition and work. The details provided about competence are not accurate. It is crucial to question how one judges overall competence.”
The government previously presented data indicating that Sharma had issued more decisions than the other three senior judges during the evaluation period.
During the Law Day event, Justice Malla also stated that the meaning of justice should not be diminished by pressures from a two-thirds majority government or threats of impeachment. Addressing the judges present, she urged them to rise above fear or influence, whether from a powerful government or the threat of impeachment.
She called on members of the judiciary to maintain courage and uphold the sanctity of justice without discrimination, stressing the importance of making fearless decisions to preserve the judiciary’s independence and dignity.
Former Prime Minister Sushila Karki, who was also Nepal’s first female Chief Justice, criticized the council’s decision harshly. In an interview with an online news portal, she lamented that a capable female justice was denied the opportunity to become Chief Justice.
Karki stated, “No one is as capable as Sapna Pradhan Malla. Her competence surpasses even mine. This is a slap in the face of 15 million women, who make up half the country’s population.”
She expressed her anger over the Constitutional Council’s decision and, during a media interaction after the Law Day event, reacted negatively when a journalist referred to her as “mother,” a term previously used by Prime Minister Shah.
Karki responded, “Do not call me mother. Your mother has changed. Balendra Shah’s wife (Sabina Kafle) is now the mother of the nation.” It is noteworthy that Karki was appointed as interim Prime Minister following the Gen-Z movement last September, with significant involvement from the current Prime Minister Shah.
Karki previously stated that the council’s decision would impact judicial independence, asserting, “The attempts to control the court will not bode well for the government. Interference in the court is not a good practice.”
Constitutional lawyer Bipin Adhikari informed a news agency that while the constitution does not prevent the council from recommending a junior justice for the Chief Justice position, there are concerns that breaking the tradition of appointing the most senior justice could allow the government to maneuver and select its preferred candidate for the top position in the Supreme Court.
He stated, “This could affect the independence of the judiciary, which is responsible for checking and balancing the state’s executive branch.” According to Adhikari, the government’s argument that Justice Sharma’s track record was better based on the number of decisions is flawed.
He emphasized, “Numbers alone cannot serve as a parameter for assessing a judge’s performance. The quality of decisions and their impact on judicial precedents are far more critical.”
Adhikari believes that the notion that Malla and other senior judges were appointed based on political power-sharing may have been a significant reason why the ruling party-dominated Constitutional Council did not recommend senior-ranked judges for the Chief Justice position based solely on performance.
The constitution does not prohibit the Constitutional Council from choosing any of the six judges suggested by the Judicial Council; however, the tradition of recommending the most senior Supreme Court judge has been long-standing. Some judges were previously rejected by the Parliamentary Hearing Committee due to complaints against them.
Under Article 129 of Nepal’s constitution, any justice who has served as a Supreme Court judge for at least three years is eligible to become Chief Justice.
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