November 07, 2017| Updated December 01, 2017
KATHMANDU, Dec 1: The Supreme Court (SC) has begun testing the legality of the appointment of 80 High Court judges by the Judicial Council (JC) headed by former Chief Justice Sushila Karki nine and a half months ago.
A three-member full bench of justices Om Prakash Mishra, Bam Kumar Shrestha and Dambar Bahadur Shahi began the hearing on the case in order to test the procedural legality and whether the appointees met other legal criteria as required by the constitution, law and the standards set by the JC.
Opening arguments on behalf of the writ petitioners, advocates Toyanath Dhungana, Pankaj Kumar Karna and Dal Bahadur Dhami sought an apex court order to annul the appointments, arguing that the judges had been appointed in the midnight by neglecting procedural norms while bypassing two JC members Baidyanath Upadhyay and Ram Prasad Sitaula.
Defending the appointments, senior advocate Radheshyam Adhikary, however, sought an apex court order to uphold the decision and also urged the court to direct the appointing body to respect the standards of appointment including the principle of inclusion in the future.
"The appointment cannot be annulled just because two members [Upadhyay and Sitaula] had left the JC meeting which was duly conducted for appointing the judges according to the Judicial Council Act, 1992," Adhikary argued on behalf of the appointees. Senior advocates Badri Bahadur Karki and Shambhu Thapa will argue on behalf of the appointed judges on December 14 as the hearing could not be concluded on Thursday.
Earlier, the apex court had issued a show cause notice to the JC, asking it to explain why the appointments were made.
While submitting his written reply to the Supreme Court, Chief Justice Parajuli, the head of the JC, argued that every appointment of judges must not only be technically legitimate but also be lawful under the principle of judicial independence.
In his reply submitted to the apex court on August 24, Parajuli underlined that no order could be issued in relation to him because he did not have any positional capacity at the time of appointment of the judges and requested the court to consider the replies of other respondents on various disputed matters including procedural errors, criteria of the judges and the violation of the principle of inclusion as well.
Parajuli, in his reply, states: "I did not participate in the decision-making process at that time because I did not hold any position. The petitioners should not make me a defendant but they may do so in my current capacity of Chief Justice. Hence it is meaningless to name me a defendant in the petition on the decision which was passed at that time. Thus the order cannot be issued in relation to me and I would like to request the court to consider the constitution, law, jurisprudence and the relevant procedures in this case."
Sitaula, another member of the JC, also claimed in his written reply that he and then JC member Upadhyay had left the January 12 meeting because Chief Justice Sushila Karki did not come.
Sitaula claimed that Karki had invited Upadhyay and him to the meeting at JC Secretariat, Kupandole, but she herself did not show up at the meeting. Later, they went to the meeting called at the Chief Justice's Official Residence, Baluwatar in the evening but they walked out when the then Chief Justice Karki did not turn up.
Upadhayaya also replied to the apex court stating that he was not responsible for any mistake during the appointment because the decision was passed in his absence. He also underlined in his written reply that the decision underestimated their presence.