Appointment of Constitutional Bench judges in Nepal's Supreme Court

Nepal's Supreme Court faces a profound crisis that goes beyond the technicality of law and hits at the very core of the country's democratic existence. The fight over the appointment process of judges to the Constitutional Bench has revealed a serious fault line. This is not a process issue; this is an issue of trust, legitimacy and constitutional justice in a country still on the course of experimentation.

The key questions are: Must the Constitutional Bench be created by lottery? Or must the Chief Justice have the authority to appoint justices by handpicking, bringing experience and continuity to handling Nepal's most delicate constitutional issues?

Nepal's Constitution itself, in Article 137, expressly provides for the Constitutional Bench to be established. It is a five-judge bench led by the Chief Justice, and the remaining four are appointed by the Chief Justice on the recommendation of the Judicial Council. The design is one of trust in leadership within the judiciary in determining the composition of the bench, reconciling seniority, experience and expertise with institutional responsibility.

But this process has been mired in controversy for a long time. The Constitutional Bench constantly determines high-stakes, politically charged and high-profile cases - from election disputes to interpreting constitutional rights - that chart out Nepal's democratic direction. Legal experts and members of the judiciary assert that the appointment process vests the Chief Justice with too much authority, causing him to exercise favouritism.

Therefore, they have urged the adoption of the "Golapratha" (lottery system), in operation already on the other benches of the Supreme Court. The lottery system has been considered a means of ensuring impartiality and avoiding suspicion of bias.

Chief Justice Prakashman Singh Raut talked about the possibility of applying the lottery system to the Constitutional Bench, and at least some of the other judges are receptive to the notion. They argue that limiting human discretion in the appointment of judges can close windows to nepotism, political influence and patronage, thus renewing the judiciary's credibility and transparency.

Conversely, senior-most Justices Sapana Pradhan Malla, Kumar Regmi and Hari Prasad Phuyal vigorously ring against denying the Chief Justice primacy in making such appointments. In their view, the Constitutional Bench requires something greater than the absence of bias; it requires judicial wisdom, experience and mature prudence in handling complex constitutional issues.

This is a line of thought which brings to the forefront a fundamental constitutional paradox: finding the appropriate balance between the requisite amount of openness and justice in decision-making on the one hand and competence, stability and effective functioning of the judiciary on the other.

Former Supreme Court judge Justice Balram KC says,

“Article 136 entrusts the Chief Justice with the responsibility of appointing justices to the Constitutional Bench, acknowledging their central role in safeguarding justice. Simultaneously, Article 137 requires the Judicial Council to recommend four justices. This isn’t just a procedural formality; it’s meant to ensure the bench is composed of individuals with proven expertise in relevant areas of law. Seniority alone doesn’t guarantee constitutional insight; one judge may specialise in constitutional law, another in corporate or criminal law. That’s why the Judicial Council must prepare a roster based on subject-matter expertise, from which the Chief Justice should make the appointments, thus upholding both competence and impartiality.”

Another former Supreme Court judge Justice Ishwar Khatiwada opined,

"The idea of constituting the Constitutional Bench through lottery is premised on impossibility. Article 137 of the Constitution of Nepal explicitly states that the justices will be appointed by the Chief Justice. Substituting it with something else dilutes constitutional authority. This arrangement abolishes accountability, shows disrespect to judicial accountability and creates ambiguity."

Senior Advocate Raman Shrestha contextualised the issue, saying,

"This scandal was brought about after the recent Constitutional Bench judgment in the 52 constitutional leadership appointments case, which was severely criticised by the legal fraternity and led to internal unrest. That judgment did not uphold the Constitution.

The Constitutional Bench, so far to this date, is an irritating convention. It has to be given up and replaced by a Special Bench wherein, in the event of precedents and in the public interest, at least 11 out of 21 justices resolve the case."

Senior Advocate and Constitutional Expert Chandrakanta Gyawali said,

"Article 136 enables the Chief Justice to appoint judges to the Constitutional Bench, recognising their ultimate responsibility for the administration of justice. Article 137, however, makes it obligatory on the Judicial Council to appoint four other justices. For the sake of impartiality and expertise, the Judicial Council has to draw up lists of judges according to subject matter expertise. Judges can then be appointed by the Chief Justice from such lists or a lottery can be drawn if needed."

Nepal's case is not alone. Constitutional benches and courts worldwide face the same conundrum, each one of them making their own history, political culture and legal tradition.

India, Nepal's constitutionally behemoth and geographically contiguous country, is a prime case in point. The Indian Constitution mandates a Constitution Bench with at least five justices, but does not necessarily require the Chief Justice to be present. Yet, at the same time, the Chief Justice is empowered to constitute the benches and assign the presiding judges over them. This hybrid model combines institutional flexibility with discretion at the level of leadership so that the Court is able to tackle challenging cases with an optimal ratio of capability.

In the United States, there is no distinct "Constitutional Bench" institution. The whole court decides cases, with emphasis placed on collegiality and collective decision. The organisational structure of the US Supreme Court avoids internal compartmentalisation and instead depends on the collective wisdom and institutional gravitas of the justices.

Germany, Italy and South Korea follow the other path of independent constitutional courts. The Federal Constitutional Court of Germany, with 16 judges allocated in two panels, is famous for its meticulously crafted and consensus-driven verdicts. Italy's Constitutional Court splits joint authority of appointment between the President, Parliament and the judiciary. South Korea's Constitutional Court famously removed President Park Geun-hye in 2017, showing its capability of breaking or forging national politics.

These models point to several efforts at balancing independence, competence and democratic accountability. Even the best-structured courts, however, fail. Russia and Turkey's constitutional courts do not meet expectations when it comes to political intrusions and it shows that structure does not necessarily ensure judicial independence.

Nepal's democracy is in its infancy. Three decades of political upheaval, civil war and unstable Constitution-making have eroded institutions such as the judiciary. Supreme Court independence and integrity are essential to secure the rule of law, protect fundamental rights and break political gridlocks by peaceful means.

Establishment of a Constitutional Bench is not merely a bureaucratic ritual; it is an indicator of the way justice is conceived and delivered. If cases are assigned haphazardly in ignorance of the specialisation of the justices, there are possibilities that the most important constitutional matters do not get the specialisation they truly merit. An intricate case involving financial regulation, for example, would be incomplete if none of the randomly chosen justices specialise in corporate or economic law.

Otherwise, this concentration of appointment power in the Chief Justice with no one accountable to it can nourish charges of prejudice, politicisation and nepotism. This can devalue the prestige of the judiciary, a valuable asset in Nepal's fragile democracy.

Justice Malla's contention a few months ago in a public forum makes this clear. She said,

“Competence and neutrality are needed in order to protect justice. The judiciary needs to balance trends that destabilize either of these values.”

Consider the South Korean Constitutional Court in 2017 that removed President Park Geun-hye from office. The action did not just indicate the independence of the court, but also its capacity to decide the country's political trajectory. The legitimacy of the Court was based on its makeup; it had judges who were perceived as impartial and capable of managing a constitutional crisis.

Furthermore, India's Kesavananda Bharati case in 1973 reaffirmed constitutional supremacy in times of political crisis on the basis of a strongly established bench whose decision remains impactful to constitutional law.

Nepalese constitutional courts have decided the cases of the highest political and social significance, from the citizenship law to election dispute cases. They decide the fate of citizens and national politics. How these courts are constituted is, therefore, a decision of national interest.

Nepal's challenge is to establish a system that honours its constitutional script, upholds judicial independence and achieves public trust. It could include taking the middle road - retaining the office of Chief Justice in appointments but rendering it more open and accountable with clearer criteria or consultation with the Judicial Council.

The Judicial Council would be made more resistant to undue influence by being merit-based appointments and integrity-sensitive. Also, more public involvement in the appointment process and composition of the bench would instill more trust.

The Constitutional Bench issue is more than a court housekeeping issue; it is one of Nepal's long-running battles toward an adult democracy. At stake is the promise of justice - equitable, impartial and wise - that the Constitution purports to ensure.

Nepal's experience is a reminder of the eternal maxim: institutions are only as good as the people who occupy them. Judicial institutions do matter, but the quality, virtue and prudence of justices determine whether a democracy succeeds or fails.

As it stands currently in Nepal, the hope is that it will create an institution that will ensure the independence and professional effectiveness of its judiciary. That way, not only does it ensure the rule of law, but it also creates stronger democratic foundations that are the fulcrum of peace, stability and development.

This is a reminder that democracy is an ongoing, dynamic process - one that demands work, debate and commitment to principle over special interest. The Constitutional Bench conundrum in Nepal is merely one episode in that ongoing narrative, one that students of law and citizens must take very seriously.

Kiran Paudel is a journalist at Kantipur Media Group.