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Parliamentary hearing for new judges okayed
KATHMANDU, APR 15 -
The Supreme Court has said that, despite some “flaws”, the provision of mandatory parliamentary hearing prior to appointment of SC justices and the chief justice is acceptable and concurs with the internationally-established tradition of the judiciary, including that of the U.S.
The court made the statement on Thursday in response to a writ filed two years ago that claimed that the new provision in the Interim Constitution inserted through the second amendment (on June 13, 2007) was an “intrusion” by the legislature into the independence of the judiciary, said Asst. Spokesperson at the apex court Hemant Rawal.
After hearing arguments both for and against the writ and consulting an amicus curie--an extended panel of law experts--the court reached a conclusion that there was no need to issue any order to scrap the constitutional amendment that made it mandatory for the justices to appear for a parliamentary hearing before their appointments.
With the conclusion, a special bench of justices Bala Ram K.C., Gauri Dhakal, and Bharat Raj Upreti decided to quash the writ, while also admitting that there were some “flaws” in the hearing system provisioned by the second amendment which needed corrections. The court said the “flaws” would be explained later in the full text of the decision.
“The Legislature-Parliament has the authority to amend the constitution. The provision on parliamentary hearing for members of constitutional bodies was brought by the Parliament using its sovereign and legislative power,” stated the court decision. “The second amendment was not against or beyond the mandate of the Parliament and that does not infringe on the judiciary’s independence. But there are some procedural flaws in the parliamentary hearing system, which will be elaborated in the full text of the court decision.”
The court has also drawn upon the examples from Western countries like the U.S. whose constitutions have similar provisions of grilling justices before their appointment. The U.S. Supreme Court justices, the court decision goes, are also required to attend the “confirmation hearing” at the Senate and receive a majority “yes votes” before their appointment by the president.
Filed by advocate Subodh Man Napit on March 5, 2008, the writ was observed with keen interest by many as it was to bring out the judiciary’s response on the new system on parliamentary hearing, which had come under criticism of some of the chief justices.
Former Chief Justices Kedar Prasad Giri and Min Bahadur Rayamajee had criticised the system saying it was useless and somewhat irrelevant exercise. So far, the Parliamentary Hearing Special Committee (PHSC) has grilled and endorsed four Chief Justices, half a dozen justices and a number of envoys and members of other constitutional bodies as per Article 155 (1) of the Interim Constitution. Article 155 (1) states that “prior to appointment to constitutional posts on the recommendation of the Constitutional Council according to this Constitution, and to the appointment of the Judges of the Supreme Court and ambassadors, there shall be a parliamentary hearing in accordance with the provisions of the law.”
However, the law formulated as per this amended provision--Parliament Regulations 2008--has failed to make the hearing effective in that it does not allow the PHSC to reject any of the recommendations of the Constitutional Council unless such a rejection is back up by PHSC’s unanimous decision, which is almost impossible. As a result, none of recommendations have been rejected by the PHSC. Though the committee has decided to amend its regulations, it has not been passed by the Parliament.
Posted on: 2010-04-16 08:36
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