Explained: Nepal’s controversial Chief Justice appointment, latest in history of politics influencing judiciary

Questions of seniority

According to convention, the seniormost judge of the Supreme Court is appointed to the CJ post. Sharma was the fourth most senior judge, after justices Sapana Pradhan Malla, Kumar Regmi, and Hari Prasad Phuyal. This precedent has been broken only once.

While Justice Regmi welcomed Sharma’s appointment, Acting CJ Sapana Mallla Pradhan — who would have been appointed if precedent was followed — went on a 20-day leave the next day. She had also ordered the court administration to register a writ petition challenging Sharma’s recommendation. If she resigns, it will be the first such instance in Nepal.

Sharma studied law at Nepal’s Tribhuvan University and then did a master’s from Pune University. The Constitutional Council favoured him ostensibly for disposing of a high number of cases, but data do not support this. He will have a six-year stint, the longest tenure in the past three decades, with ample opportunity to reform the judiciary — something every government and Chief Justice has promised, but followed up with little action.

Judiciary-political party nexus

Nepal’s judiciary, especially in the last two decades of radical and constant political change, has increasingly come under political and executive influence. The principle of separation of powers has not been upheld consistently, with clear links between political parties and judges.

This was not always the case. In the late ’60s, Justice Ratna Bahadur Bista (who would eventually become CJ) was called to the Royal Palace. King Mahendra encouraged him to maintain the judiciary’s independence and credibility after he decreed against the King’s father-in-law in a property dispute.

Over time, however, partisan politics made judges vulnerable to political pressure. In 2006, the Supreme Court dissolved the Royal Commission of Corruption investigating top politicians, calling it unconstitutional, as King Gyanendra took over. “It did not take more than a few hours for the verdict to be implemented and leaders set free,” recalls Min Bahadur Rayamanji, former CJ of Nepal and the judge who headed the bench.

In May that year, within days of King Gyanendra appointing G P Koirala as Prime Minister following an understanding with the Seven-Party Alliance for restoring democracy, the new government asked judges to take a fresh oath of office — seen as the executive asking them to pledge loyalty.

The links were made even more explicit in March 2013, when CJ Khil Raj Regmi took additional responsibility of the prime ministerial post for a year, heading a coalition government. In doing so, he injected an aspect of political ambition into the post.

Sharma’s elevation and criticism

Sharma was a protégé of his uncle and former CJ Damodar Sharma. He was appointed to the appellate court about 12 years ago, but lost the job within two years, when the new Constitution (promulgated in 2015) scrapped it and introduced a new judicial system.

The government and the Supreme Court then introduced mass appointments of 80 judges to the High Courts. It followed an understanding among then CJ Sushila Karki, who was also made the interim Prime Minister of Nepal after last year’s protests, and the three major parties — the Nepali Congress (NC), the Communist Party of Nepal (UML) and the Maoists. Until about a year ago, the CJs, the CC and the parties had a quota-based system for judicial appointments that benefited all of them.

Top judiciary appointments in Nepal are made on the CC’s recommendation. Headed by the Prime Minister, the body consists of the Speaker, the Deputy Speaker and the leader of the Opposition in the House of Representatives, the Chairperson of the National Assembly (Upper House) and the Chief Justice. But when it comes to recommending the CJ, the Law Minister replaces the CJ as a member, bringing the body completely under the domain of political parties.

Sushila Karki has argued that there was nothing wrong in appointing people with political backgrounds as judges, asserting they would be unbiased when stepping into their role as judges.

For the Supreme Court, the UML and the NC had made appointments for upto 2036. Judges under the UML quota were to head the court for seven years. Justice Sapana Pradhan Malla, a UML Member of Parliament from 2008 to 2012, was expected to head the court until around 2029.

But the Balen Shah-led RSP government derailed that plan with Sharma’s appointment. Sharma has said he will uphold the dignity of the institutions and ensure their impartiality and credibility. Just recently, though, the new government introduced an ordinance stating that the PM’s voice will be the deciding factor in case of a tie in CC appointments, and he will have a veto when in the minority.

Arm-twisting the judiciary, impeachment as tool

Nepal’s Constitution provides for impeachment of those holding constitutional positions for acts of misdemeanour and conduct “inconsistent with their posts”, as most democracies do. This power, too, has been yielded brazenly by the executive to silence judges.

In January 2017, the Supreme Court disqualified Lokman Singh Karki as chief of an anti-graft constitutional body, which was appointed by the Nepal Congress, UML and Maoists through consensus. The court ruled that he did not have the requisite qualifications and did not possess “high moral character”.

In fact, the court also entertained a parallel petition, where Parliament was considering an impeachment motion against him. The notice for impeachment, with signatures of MPs, was submitted in May 2016 in both Houses after Karki announced that top leaders would be investigated for corruption. He was put under suspension even without verifying the signatures.

Two other notices were submitted to Parliament for impeachment in quick succession, against CJs Sushila Karki and Choldendra Shumsher Rana. But in both cases, Parliament did not pursue them, and the SC came to their rescue.

After the 2006 transition from absolute monarchy, SC verdicts have frequently received public criticism in Nepal, especially after those in power began getting acquittal even in murder cases. Successive Presidents have pardoned convicts with political affiliations.

Taken together, these events have contributed to the loss of public trust in the judiciary and individual judges, with Sharma’s appointment the latest instance of norms being sidelined for political considerations.