With the appointment of Dilip Kumar Poudel as the new chief justice, the uncertainty over the head of country’s apex court is over

By KESHAB POUDEL

Nepal ’s respected constitutional body finally got its chief following the appointment of senior judge Dilip Kumar Poudel as the chief justice by King Gyanendra – who is also heading the present cabinet under the article 127 of the Constitution of Kingdom of Nepal 1990.

CJ Poudel : Willing to face challenges

Although the Constitution 1990 does not visualize the Constitutional Council without elected prime minister to chair it, the situation of the country is such that there seems to be a long way to go before elections of the parliament can be held and the prime minister elected by it.

After the dismissal of Sher Bahadur Deuba’s government in October 2002 by King Gyanendra and postponement of elections for the House of Representatives indefinitely, there is no possibility to constitute the Constitutional Council as demanded by the Constitution.

The Constitution of Kingdom of Nepal does not visualize the government without elected House of Representatives. As long as the elections of the House of Representatives are not held, any appointment in the constitutional bodies will not be considered constitutional.

Appointing acting chief justice for a long period of time would have eroded the credibility of Nepal in the international arena.

Whatever the process followed, the appointment of Dilip Kumar Poudel, a senior judge of the court, fills the constitutional vacuum. When all citizens of the country including the insurgents are coming to court seeking justice, the appointment of CJ will enhance its credibility and constitutional status.

Although some oppose the appointment process as unconstitutional, they have not forwarded other alternatives. Would it be constitutional to put the post vacant for a long time? If not, what solution they have. “The invocation of article 127 and giving the prime minister’s authority to the chief justice is unconstitutional,” said Biswa Nath Upadhyaya, former chief justice and chairman of present constitution drafting committee. “It is a continuation of the violation of the Constitution by the King. In fact, our constitution has given a much greater role to the people’s representatives regarding the appointments to the public posts.”

Senior advocate and imminent constitutional lawyer Ganesh Raj Sharma termed it as the doctrine of necessity.

“The CJ should be appointed. There are some unexpected gaps in the constitution, and the doctrine of necessity is applied to ease deadlocks in the constitution,” senior advocate Sharma told The Kathmandu Post. “Academically, it can be questioned but, practically, it cannot be.”

At a time when the court has to settle many constitutional issues protecting the right and freedom of individuals, the appointment of chief justice gives a new hope. A confirmed chief justice can deliver landmark constitutional judgment than a demoralized court under the leadership of acting chief justice.

“I will work to protect the dignity and independence of Judiciary,” said chief justice Poudel talking to the reporters at his office. “The court will follow its past precedents.”

Despite the controversies, the appointment of Poudel has eased the uncertainty over the apex court – which has a long history of protecting the individual freedom and rights of the people.