National 1 (Spotlight Weekly)

Routine Quarrel

As the date of retirement of current Chief Justice approaches, routine dispute begins between two senior judges in the race

By KESHAB POUDEL

Supreme Court : Who will be the next CJ?

Whichever party controls the government, Chief Justices are appointed on the basis of seniority. Although two Chief Justices have already been appointed following the dismissal of elected prime minister two years ago and eight chief justices have already been appointed following the promulgation of the present constitution under the basis of seniority, nobody is sure whether the previous precedents will be honored this time.

Current Chief Justice Shrestha will retire next month and the search for new CJ has already begun. Although Justice Hari Prasad Sharma claims to be an unchallenged candidate for the post on the ground of seniority – the basis under which all his predecessors were appointed, since another senior justice Bhairab Prasad Lamsal is also said to be in the race, who will be appointed as a chief justice is still a matter of uncertainty.

However, even if any one of them is appointed, the post will become vacant again within a few months. In case Justice Lamsal is appointed CJ, he will retire on 5 May, 2005. Similarly, Sharma will stay in the position till 31 July 2005. They have to retire upon reaching the age of 65 years.

Senior justice Lamsal is making attempts to lead the court on the ground that he is less controversial than his rival Sharma. Lamsal had headed the High Level Judicial Property Probe Commission. Justice Lamsal, MA, B.L, also chaired high level judicial commission, which submitted the report on stampede at Dasharath Stadium in 1988 when 64 people were killed.

A mysterious killing of a house maid at his home is a noticeable controversial case against justice Lamsal who had also pleaded a case against late B.P. Koirala demanding capital punishment in his capacity as a government attorney.

Known as impatient, arrogant and famous for his un-judge-like manners, justice Sharma, M.A. LLM, has a number of controversial cases on his side including the judgment on Surya Tobacco and Nepal Electricity Authority.

Sharma and Lamsal have some commonalities also as both of them spent most of their career outside the judiciary. Justice Sharma served for a number of years at the Ministry of Law and Justice before moving to the court.

Known as silent but shrewd, Lamsal is eyeing the coveted chair and making every efforts to elbow out his colleague Sharma who was appointed the justice at the Supreme Court five years before him.

Like all judges, they also began their career as a civil servant and were promoted routinely and both of them have not made any landmark decision. "This is a routine quarrel for a routine promotion," said a lawyer.

According to article 87 (1) of the Constitution of the Kingdom of Nepal 1990, His Majesty shall appoint the Chief Justice of Nepal on the recommendation of the Constitutional Council – which consists of Prime minister, Speaker of House of Representatives, Chairman of National Assembly and leader of Opposition as members. Since the post of chairman of National Assembly is vacant and House of Representatives remains dissolved, prime minister, chief justice and Speaker are the remaining three members who have to decide the name for recommendation.

The Article 87(6) states that the chief justice or any other judges of the Supreme Court shall hold office until he attains the age of sixty-five years.

Two years ago when Kedar Nath Upadhyaya was recommended for the post of CJ, senior judge Krishna Jung Rayamajhi resigned from his post showing dissatisfaction over the appointment. As there is no record of breaking the seniority, the routine quarrel will die once the appointment will be made. If the case gets really murky, one of the two judges may resign just as Rayamajhi did.