The much delayed justice appointment process has hit yet another roadblock after Speaker Onsari Gharti sent back recommendation made for the appointment of justices for the Supreme Court. 

Dismayed with the Judicial Council’s recommendation, Speaker Gharti on Sunday returned names of justice nominees saying that Parliamentary Hearing Committee is not in place and the council was incomplete while making the decision.

A section of legal experts have questioned the Speaker’s move, saying that the decision is likely to spark dispute between Parliament and judiciary in the coming days.  “We had not expected this kind of response from the Speaker. The council will take its decision on how to move ahead within a couple of days,” said JC member and Minister for Law and Parliamentary Affairs Agni Kharel on Tuesday.  Although the Speaker has cited technical reasons behind her decision, sources say the move was taken after lawyers close to the Maoist party, Speaker’s party, were not included on the council’s list of justices. The Maoist party is understood to have been making a pitch for Tulsi Bhatta and Borna Bahadur Karki. 

Out of the 11 recommended names, four—Hari Krishna Karki, Sapana Pradhan Malla, Anil Sinha and Prakash Man Singh Raut—were picked from among the lawyers, while the rest came from the Judicial Service Commission. 

Malla and Karki are close to the ruling UML. Malla was a UML nominated lawmaker in 2008, while Karki was a member of the party legal department. Karki, also the president of the Nepal Bar Association, was appointed Attorney General when KP Sharma Oli was elected Prime Minister in October. He stepped down from the post hours before the JC decided to recommend him as an SC justice. Sinha and Raut are said to be close to Nepali Congress. 

Speaker’s conflicting decisions on two similar issues have raised many an eyebrow. The nomination of Ayodhee Prasad Yadav as Chief Election Commissioner by the Constitutional Council even in the absence of Parliamentary Special Hearing Committee has not been returned. 

Legally, Parliament can send back recommendation made by the Constitutional Council and the JC if the parliamentary hearing fails to take place within 35 days of recommendation. Yadav’s recommendation is pending at Parliament for the last three months.  

Acting Chief Commissioner Yadav was nominated commissioner in the Election Commission on the Maoist quota in 2007. Many see this as evidence of Speaker playing politics. “It is nothing more than the reflection of their [Maoists] dissatisfaction,” said Hari Phuyal, a constitutional lawyer. “This is totally unconstitutional and Speaker has no such power.”  

While Speaker Gharti was not immediately available for comment, Ram Narayan Bidari, a Member of Parliament and lawyer close to the Maoist party, dismissed allegations that her decision was politically motivated. “That’s not true. All 11 justice nominees sympathise our political views,” Bidari said. 

The new constitution has a provision for 21 permanent justices in the Supreme Court as against the provision for 15 justices in the previous constitution. Four positions of justices were lying vacant before the new constitution was adopted in September, while one more justice, Girish Chandra Lal, has retired taking the number of vacant posts to five. Consequently, the apex court has been overwhelmed with thousands of backlog cases.

Parties at odds over hearing panel

Major parties are divided over the size of the hearing committee. The new charter envisages a 15-member Parliamentary Hearing Committee, comprising members from both the House of Representatives and National Assembly. The opposition parties are of the view that the committee, in its present strength, cannot have representation of all the parties in the Legislature-Parliament, which currently boasts 31 parties and two independent lawmakers. 

The opposition, including Nepali Congress and other fringe parties, wants continuation of the 73-member hearing committee, while the UML-led ruling alliance is in favour of reducing its size as provisioned in the new constitution.