Who would be the next Chief Justice, on what criterion?

As the countdown for Chief Justice Dilip Kumar Paudel’s retirement begins, homework is on for selection of a new Chief Justice.Paudel is due to take compulsory retirement on September 7. Now the question is: Will the Constitutional Council (CC) headed by Prime Minister Girija Prasad Koirala continue the tradition of appointing the senior-most justice as the CJ, or will it adopt the principle of evaluating the merit of other contenders also?Five Supreme Court justices —- Kedar Prasad Giri, Min Bahadur Rayamajhi, Anup Raj Sharma, Ram Prasad Shrestha and Khil Raj Regmi — are eligible for appointment as CJ. Each one of them has more than three years’ experience and so are eligible as per Article 103 of the Interim Constitution.According to sources, Giri has got assurances from leaders of the Nepali Congress. However, a few lawyers want Rayamajhi or Sharma for the top post as they had earned a reputation for courage, even during the royal regime, in protecting individual rights. However, Shrestha and Regmi are not in the race.If the CC prefers seniority, Giri would be the next CJ. Otherwise it would be Rayamajhi or Sharma. During the last 16 years all CJs were selected on the basis of seniority though judges with five years’ experience were eligible as per the 1990 Constitution.According to the second amendment of the 2007 Constitution, Article 155, the CJ is appointed by the PM only after parliamentary hearings.Changes in the appointment process have created a space for politicians to play a major role in selecting the new CJ.“It is obvious that those eligible will be involved in the race because of the system we have adopted,” said one SC justice. “The politicians can choose anyone eligible for the post, but they should think about the independence of the Judiciary,” he added.Judges are also divided on the issue. Some have been advocating seniority and others have been pleading for competency as the criterion. “If we want to reform the Judiciary we have to give priority to competence as the criterion,” a judge, who believes in merit- based appointment, told this daily.Those who believe the criterion should be seniority, however, think that selection of the CJ should not hinder the Judiciary’s independence.Prominent Advocate Bharat Raj Upreti said there is no way but to continue the practice of choosing the senior most judge as the next CJ. “If we are not going to choose anyone totally from outside like in America, we have to follow the existing British model,” he added.“If anyone is working in the SC and he did not face any charge why should not we trust him,” Upreti asked.Another lawyer Purna Man Shakya said, “The CC should give strong justification if it wants to break the seniority norm.” Seniority should not be only basis of selecting the CJ, but without justification seniority basis should not be ignored because it may affect the independence of the judiciary “ Shakya added.

(news was published in himalayatimes by Ananta Raj Luitel)