Dissatisfied over the provision in the interim constitution that requires the Supreme Court (SC) judges to take oath and the composition of the Judicial Council (JC), a few SC judges are talking of resigning.
Some judges of the apex court have expressed dissatisfaction on the proposed Judicial Council as they feel that the proposed Judicial Council wants to make the judiciary committed to the executive.
“The politicians want a committed judiciary,” a senior justice of the court told. He added that the proposed Judicial Council shows that the politicians want to humiliate the judges. Now, the legal experts who will be nominated by the Prime Minister and the representatives of the Nepal Bar Association (NBA) will be senior members than the SC’s senior most judge in the Judicial Council. The Judicial Council will appoint and take action against judges of the Appellate Courts and the District Courts.
According to another Justice, a few ad hoc judges are planning to resign as they might not get extension once the interim constitution comes into force.
Justice Anup Raj Sharma, however, said there is no choice for any judge but to take a fresh oath. Under the interim constitution, those who refuse to take fresh oath of office will lose their jobs.
Some judges have suggested to exclude sitting Prime Minister from facing any case in a court of law as a judge appointed by the PM-controlled Judicial Council will not be in a position to impartially decide a case against him. In the proposed set-up, the Prime Minister will control the JC through the Law Minister, representatives of the PM and the Nepal Bar Association. “This will be a sheer violation of the independence of the Judiciary,” a senior justice said.
“As a judge, my function is to interpret the constitution promulgated by the authorities and not to make choices on the type of constitution,” said Justice Balaram KC. “But my concern is whatever the constitution be, the fundamental rights of the people, the rule of law and the independence of the judiciary must remain intact,” KC added.
Advocate Radheshyam Adhikary also said that it is against the principle of separation of powers and checks and balance to submit the annual report of the SC to the PM as required by the interim constitution. “It makes the judges more accountable to the executive,” Adhikary added.