KATHMANDU: The Supreme Court, the final interpretor of the constitution, is mulling over appointing justices, even by going against Article 155 of the Interim Constitution that takes parliamentary hearing before the appointment of SC justices, chiefs as well as members of constitutional commissions and ambassadors as mandatory.
With the Constituent Assembly, which doubled as the Parliament, dissolved, parliamentary hearing on the candidates is out of the question. At the same time, justice delivery is likely to get obstructed in the event of non-appointment of justices at the country’s highest court.
“It is illogical to hinder justice delivery citing a crisis,” a Supreme Court justice told this daily on condition of anonymity. According to the justice, Chief Justice Khil Raj Regmi and members of the Judicial Council, which is authorised to appoint judges, are under pressure from the legal fraternity to appoint justices regardless of Article 155. Of 22 positions at the apex court, there are eight permanent and seven ad hoc judges. The tenure of ad hoc justices Baidhya Nath Upadhayay, Bharat Bahadur Karki, Tarka Raj Bhatta, Girish Chandra Lal and Gyanendra Bahadur Karki will end in November. Justices Prakash Osti and Bharat Raj Upreti will retire in January, while permanent justice Tarhir Ali Ansari will retire in August.
A drafter of the Interim Constitution, senior advocate Shambhu Thapa, suggests two ways — invoking Article 158 to remove hurdles or letting the JC conduct the hearing for the appointment of justices.
“The right to get justice cannot be denied citing the dissolution of the CA,” Thapa said.
“The interim constitution does not provide any alternative on appointments in the SC and constitutional bodies in the event of the dissolution of the CA. As per the principle of eclipse, the parliamentary hearing provision has become redundant. So, the appointments must continue even without parliamentary hearing,” Thapa reasoned.
He argued that appointment of justices under new arrangements will make way for appointments in various constitutional bodies and diplomatic missions. However, Upendra Keshari Neupane, member of the JC, maintained that appointing judges without parliamentary hearing will create controversy.
Subas Chandra Nembang, chairman of the dissolved CA, said it is unconstitutional to appoint judges without parliamentary hearing. “This is a mandatory provision of the Constitution, so it cannot be ignored,” Nembang said. “We have been facing this problem because we did not take such issues into account before dissolving the CA.”THT