By Binod Ghimire in The Kathmandu Post, Nov 08, 2023
In his first meeting with journalists after being appointed the chief justice in the last week of August, Bishwombhar Prasad Shrestha had claimed that the vacant positions of judges in the Supreme Court and other courts would soon be filled.

He had said it was painful to see around half of the Supreme Court benches empty despite a huge workload at the court. However, close to three months since his appointment, the Supreme Court is still without a third of justices.

For over two years, the court, which has 21 justice positions including the chief justice, never had all the positions filled. Some positions have been vacant for over two years now. Among the existing 14 justices, Ishwar Prasad Khatiwada retires in March after reaching the age 65.

Only two justices have been added to the top court since March last year. Binod Sharma, a high court judge, has been promoted to the Supreme Court. (He was recommended for the top court before Shrestha was appointed chief justice.)

The five-member Judicial Council led by the chief justice has the authority to nominate judges and justices. Law minister, senior most Supreme Court justice and two advocates picked one each by the Nepal Bar Association and the government are its members.

Though the council has nominated some judges for high courts and district courts under Shrestha’s leadership, it hasn’t been able to fill the vacant positions in the Supreme Court.

As mentioned by the chief justice in his first press conference, hearings are being conducted in seven or eight benches daily while the court would have 12-13 benches when it had all 21 justices.

Council members say they are aware of the prolonged shortage of justices and understand the urgency to fill the positions. “We know that it is already late to fill the vacancies. Our earlier meetings were more focused on appointing judges in high courts,” Ram Prasad Shrestha, a member of the council, told the Post. “The council has not been meeting lately as its chair and members were on one after another foreign trip.”

Currently, Minister for Law, Justice and Parliamentary Affairs Dhanraj Gurung is visiting Australia. The chief justice was on a weeklong China visit last week. Similarly, before that, council member Ram Prasad Bhandari was touring the US.

As per the latest Supreme Court report issued earlier this year, it has over 27,000 backlog cases to clear and over 4,800 cases are older than five years. It could only clear some 22 percent of cases from the previous fiscal year.

Although Shrestha, the council’s member, claimed they were earlier focussed on filling high court vacancies, the council has yet to make appointments in around half of the vacant positions in the courts. Also, six of the seven high courts have been without chief judges for months.

Except for the nearly two-month long tenure of the then chief justice Hari Krishna Karki, the Supreme Court was being led by acting chief justices ever since the suspension of Cholendra Shumsher Rana from chief justice on February 13 last year —until Shrestha’s appointment as the head of the judiciary.

The judiciary was expected to get on track with the appointments when Shrestha assumed the leadership. But that has not happened.

Gopal Krishna Ghimire, president of the Nepal Bar Association, said the chief justice has failed to demonstrate his leadership in the council. “The council has proved to be an incompetent mechanism in the absence of an assertive leader,” he told the Post. “The council has been unable to fill the vacancies as there has been no [political] agreement on sharing the vacant positions.”

He also said that the association is dissatisfied with the role of its representative in the council. The bar association sent Shrestha to the council.

Shrestha, however, said the council was serious about filling the vacancies and nominations for justices would be made soon on a merit basis. “A meeting will be held once the law minister returns [from his foreign trip],” he said. “We hope to fill the vacancies either before Tihar, or immediately after the festival.”
https://kathmandupost.com/national/2023/11/08/supreme-court-still-short-of-a-third-of-its-quota-of-justices