Nation Weekly

Legal Eye
36
Objection Overruled
Appointments of Anup Raj Sharma and Balram K.C., none of them
Appellate Court judges, to the Supreme Court Bench have come under
fire from the establishment. But Sharma and K.C. both have solid
track records and the judiciary has to free itself from conventional
trappings if it is to establish meritocracy in its ranks
BY JOGENDRA GHIMIRE
It’s not just the country’s executive, or absence of one, that is in the
news. Recently, there has been some controversy over the appointment
of two senior practicing advocates—Anup Raj Sharma and
Balaram K.C.—as the judges of the Supreme Court. The appointment of
practicing lawyers to the highest Bench is a rather rare happening in our
judiciary, which is used to promoting career civil servants and career
judges right up to the highest echelons. In the past, such appointments
have been fairly low-key affairs since the constituency
that was directly affected by such
appointments—the Appellate Court judges,
the senior members of the Bar and eligible
academics—generally kept silent over such
appointments.
The two recent additions to the Bench,
however, have disturbed the ranks, especially
the Appellate Court justices, so much that they
have gone so far as to petition the King against
the appointments. The outrage is palpable.
Their criticism revolves around a few points.
The duo were junior compared to a number
of sitting Appellate judges; and, that appointment
of Sharma directly as a permanent judge
without having served as an ad hoc judge,
the route most judges in the apex court normally
take, is a deviation from a time-honored
tradition.
These arguments are limp. The judiciary
has to free itself from bureaucratic trappings,
if it is to establish meritocracy in its ranks.
Both Sharma and K.C. have great track
records—Sharma as a successful commercial
lawyer and K.C. as a government prosecutor
and, since his retirement from the government, as a litigator and
arbitrator of repute. They are undoubtedly among the brightest members
of the Bar and have a sound understanding of Nepal’s judicial system.
Indeed, they are junior to some of the judges in the Appellate Court.
But those who say they have greater claims, and not Messrs K.C. and
Sharma, to the Supreme Court based on their seniority are ignoring
perhaps the most important underlying philosophy. That of the Constitution,
which provides no guarantee to appointments to the apex court
based on seniority. It is not a process of natural progression.
Sharma and K.C. are only two of the 10 individuals who have been
appointed as permanent or ad hoc justices of the apex court during the
last two lots of appointments. Every other individual who has been appointed
as an ad hoc judge or confirmed as a permanent judge was from
among the Appellate judges. Considering that a far fewer number of
lawyers who get appointed to the apex court compared to sitting judges
of the Appellate Courts, the obvious question before us is: what was so
different about these appointments that outraged the Appellate judges
so much?
This reaction can be best understood
keeping in view most of the post-1990 appointments,
which seem to have created an
impression that the apex court positions were
the preserves of the career judicial officers
and lower court judges. This seems to have
given credence to the conventional theory
that those from outside the Appellate Courts
essentially come in to bite off chunks from
the pie—to borrow an expression used recently
by a retired Supreme Court justice,
Krishna Jung Rayamajhi.
The tendency to take the easy route by
appointing the seniormost of the Appellate
judges to the apex court has been doubly
retarding. It makes the Apellate judges professionally
complacent; it also frustrates far
more capable lawyers and judges in the lower
courts who don’t have a shot at the Supreme
Court Bench despite their competence.
The fundamental problem lies with the
twin issues of seniority and service with the
government—both against the letter and spirit
of the Constitution. We have been obsessed
with the idea of appointing the seniormost of
the Appellate judges to the Supreme Court without actually looking into
the competence of the individual under question.
The Constitution, in fact, looks for neither the seniormost individual,
nor for an Appellate judge. What it looks for are competent
jurists who have either been an Appellate judge for at least 10 years
or have been practicing lawyers or law researchers for at least 15.
Beyond this, it is purely individual competence that ought to be the
deciding factor—not seniority or X number of years one has put in
government service.
MAY 30, 2004 | nation weekly