Rejection Of Joshi As CJ

Uttam Maharjan

For the first time the Parliamentary Hearing Special Committee (PHSC) has rejected the nomination of Deepak Raj Joshi as Chief Justice, which has given rise to heated arguments in the judicial and political circles. Joshi’s nomination was rejected by a two-thirds majority of votes with lawmakers from the Nepali Congress boycotting the vote.
The PHSC rejected the nomination on five grounds. As per the committee, Joshi was unable to come up with a strong action plan to lead the judiciary and answer questions asked by the committee satisfactorily. His academic certificates are dubious. Even former chief justices raised questions about him. Lastly, he could not express his commitment to keep the judiciary independent.

The PHSC had serious reservations about Joshi’s SLC certificate. As per the certificates presented by Joshi, he passed the SLC examination in 1973 AD from the National Rastriya Vidyapeeth, which, as claimed by him, was a parallel board equivalent to the SLC board at that time. The PHSC has accepted the nomination of ten chief justices since it was formed in 2007 as stipulated in the constitution of 2007. The provision has also been encapsulated in the constitution of 2015. There are three bodies involved in the nomination of justices and chief justices: the Judicial Council, the Constitutional Council and the PHSC. The Constitutional Council consists of representative from the executive, legislature and judiciary: the Prime Minister, the Chief Justice, the Speaker and Deputy Speaker of the legislature, the Chairman of the National Assembly and the Leader of the Opposition.
Similarly, the PHSC is composed of members of the ruling and opposition parties. As per the constitution, the President appoints the Chief Justice on the recommendation of the Constitutional Council, whereas other justices are appointed on the recommendation of the Judicial Council. The Judicial Council prepares and keeps records of those Nepali citizens that are eligible for appointment to the post of judge. It recommends appointment of judges, transfers them, takes disciplinary action against them, dismisses them and does other work relating to jurisdiction or judicial administration. Joshi has served for 22 years in the appellate courts and four years in the Supreme Court. He was recommended by the Judicial Council from among the three senior-most justices and endorsed by the Constitutional Council as eligible for the post of Chief Justice.
With rejection by the PHSC of the nomination of Joshi as Chief Justice, both legal and political arguments for and against the decision have cropped up. Some have argued that the rejection of the nomination was presumptive and not based on evidence. The decision of the PHSC was influenced by those who want to keep the judiciary under the jackboots of the parliament. The decision was linked to the ‘arrogance’ of the two-third majority of the ruling coalition. On the other hand, others have argued that the decision was made as per the constitution and there is no point in taking exception to the decision.
Most people are of the view that the Constitutional Council is a competent body and nominates only those qualified for being chief justices. According to them, the PHSC asks the nominees only some questions and endorse them to the recommended posts. Taken in this light, the role of the PHSC is no more than a rubber stamp. If its role is just restricted to this, there will be no need for the PHSC and it would be better to dissolve it. The nominations made by the Constitutional Council should me made final.
In recent years, the judiciary is surrounded by one controversy after another. Some of the rulings made by Joshi in the past were also controversial. There is no practice of taking action against judges that make wrong rulings. So the need of the hour dictates that only competent, honest and intrepid judges man the judiciary.
The Nepali Congress has taken the issue at umbrage, declaring that it will make protests both in the parliament and streets. It has also raised the question over the competence of the Constitutional Council. It has blatantly said that the decision of the PHSC is an interference with the judiciary and that it has imperiled the independence of the judiciary. But there do not exist any constitutional and legal grounds to go against the decision of the PHSC. It is free to make decisions on its own by evaluating the backgrounds and performance of the nominees for chief justices in a fair, impartial and transparent manner.
Although the PHSC has cast doubt over the academic of Joshi, the authenticity of the certificate has not been investigated. Joshi, who is on leave now, has requested the Constitutional Council and the government to have the authenticity of his SLC certificate investigated by an independent body. He has claimed that this issue has not come up in his 26-year-long career in the judiciary and that drawing conclusions haphazardly without verifying the authenticity of his certificate is against the principle of natural justice.
Therefore, the Constitutional Council and the government should probe into the authenticity of Joshi’s certificate. If the certificate turns out to be a forged one, legal action needs to be taken against him. If not, appropriate steps should be taken. This is not the first time that such controversies about judges have come up. Ex-Chief Justice Gopal Prasad Parajuli was also mired in a controversy over his date of birth. He later resigned from the post amid the controversy.

Wake-up call
However, the decision of the PHSC has invoked a wake-up call: it is imperative to make reforms in the judiciary, which has been mired in controversies for quite some time. It is equally important to keep the judiciary away from politics. It is said that some judges are appointed on the basis of their political nexus. The stink being kicked up over the matter by the Nepali Congress is political, pure and simple. Politicisation of the judiciary is something undesirable as it may affect court verdicts. So it is high time appointment of judges on the basis of political connections or faith be stopped from now onwards so that the independence of the judiciary can be maintained.


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