On May 8 the Constitutional Council recommended senior most justice of the Supreme Court Hari Krishna Karki for the post of chief justice. His nomination now needs to be approved by the Parliamentary Hearing Committee, a joint panel of both chambers of the federal parliament, before appointment. Once he is appointed, the judiciary will get its chief, a position that has been vacant for around a year and a half. All three tiers of courts are short of judges, affecting their case handling. Karki’s appointment alone, therefore, is not going to solve the problem facing the judiciary.

The Post looks into the court vacancies and its impact on the performances of the Supreme Court, high courts and district courts.

How long has the Supreme Court been headless?

The chief justice heads not just the Supreme Court but the entire judiciary. However, the position has been vacant since Cholendra Shumsher Rana was suspended in February last year following the registration of an impeachment motion against him in the House of Representatives. Deepak Kumar Karki, who took charge of the Supreme Court after that, retired as acting chief justice. Hari Krishna Karki has been the acting chief justice since October last year.

Karki’s appointment as the chief justice will take around a month as the Parliamentary Hearing Committee is yet to get its full shape. The committee needs to invite and look into complaints against Karki. Before the hearing, the complaints and questions from the 15 members of the committee will be put before Karki. The President appoints the chief justice after a clearance from the hearing committee.

What about other justices?

The constitution envisions the top court can have up to 21 justices including chief justice. However, only 16 justices are currently on the roster. As many as six justices retired on different dates in 2022. However, just one justice—Til Prasad Shrestha—was appointed in March last year as a replacement for retired justice Purusottam Bhandari. The court is yet to get replacements of former acting chief justice Deepak Kumar Kari and justices Meera Khadka, Tej Kumar KC and Bom Kumar Shrestha—all of whom retired last year.

Nripa Dhwaj Niroula, the chief judge of Dipayal High Court, and Dilli Raj Acharya, who is second in seniority among high court judges, are the contenders for the vacant Supreme Court positions. However, there is also the practice of appointing justices from among senior advocates.

While the Constitutional Council picks the chief justice, it is the Judicial Council that recommends other justices and judges. In addition to the chief justice, other justices of the Supreme Court also face parliamentary hearings before their appointment. Though the law requires the recommendation of the chief justice and other justices to be done a month before the positions become vacant, it has not been followed.

How is the situation in the lower courts?

As in the Supreme Court, close to a fourth of the judges’ positions in high courts are vacant: 42 positions among 160 in the seven courts and their 11 benches. Except Dipayal High Court, other six high courts have not had the chief judge for a year now. Those who have served as district court judges for a minimum of five years or those who have practised law for at least 10 years are eligible to be high court judges. Similarly, those who have served as gazetted first class officers under judicial service for five years or more are eligible for high court judges.

The chief justice-led Judicial Council picks the high court judges. Last year, when Govinda Sharma Bandi was the law minister, the criteria for the selection of the judges was prepared. A list of eligible judges was prepared through an open call. However, the judges were never appointed.

The situation is similar in the district courts. Out of 240 district judge positions, 40 remain vacant. Unlike the higher courts, a significant number of district court judges are appointed through open competition.

Twenty percent of the positions are appointed on the basis of seniority, qualification and competence, from among the officers who have obtained bachelor’s degree in law and served for at least three years as gazetted second class positions of the Judicial Service. Similarly, 40 percent of vacant posts are filled on the basis of open competitive tests, from among the officers who have obtained bachelor’s degree in law and worked for at least three years at the gazetted second class post of the Judicial Service.

The remaining 40 percent of the total vacant posts are filled, on the basis of open competition, among the citizens of Nepal who, having obtained a bachelor’s degree in law, have regularly practised law for at least eight years as advocate or those who, having obtained a bachelor’s degree in law, have served as an officer under the Judicial Service for at least eight years or have constantly been engaged in the teaching or research of law or served in any other field of law or justice for the same number of years.

Has the lack of justices and judges affected the judiciary’s performance?

Yes. As per the Supreme Court’s report for the fiscal year 2021-22, it was the worst performer among the three tiers of courts. The high courts performed the best, with a 59.33 percent case clearance rate. The district courts came second (54.56 percent) while the top court was the last (17 percent).

Of the 33,466 cases including the backlog from previous years, the Supreme Court could clear just 5,689 cases in a year, which is way less than it did in the fiscal year 2020-21. It had as many as 35,981 cases in docket in 2020-21 including 24,180 from the previous years. The court could clear 31.2o percent of the cases, with a backlog of 24,756 for the next year.

“The court’s performance has been hugely affected as a quarter of the justice positions lay vacant,” Bimal Poudel, spokesperson for the Supreme Court, told the Post. “Earlier, we used to constitute 10 benches each day, now the number is seven.” Every day, the hearings in around half of the cases scheduled for the particular day get deferred in the lack of time to hear them.

When will the appointments be made?

That is unclear. It has been months since the Judicial Council met last. Led by the chief justice, the council includes the minister for law and justice, the senior-most justice of the Supreme Court, a jurist appointed by the President on the government’s recommendation, and a senior advocate recommended by the Nepal Bar Association as members. However, the ministerial position was vacant for a long time. Though Nepali Congress Vice-president Dhan Raj Gurung took charge of the ministry two weeks ago, the date for the council’s sitting is yet to be fixed.

“The council has many recommendations to make. However, I don’t have information about its meeting,” Man Bahadur Karki, spokesperson for the council, told the Post.

Even if the meeting is soon held, it is unlikely that the very first will make recommendations.