The judiciary has been handed over to the acting leadership since Chief Justice Prakash Man Singh Raut retired on Tuesday due to the age limit of 65. The senior-most judge of the Supreme Court, Sapana Pradhan Malla, is assuming the role of acting Chief Justice from Wednesday.

The constitution stipulates that the Constitutional Council should recommend a new appointment one month before the post of Chief Justice falls vacant. However, the recommendation process is hampered due to the incompleteness of the council itself.

The council, chaired by the Prime Minister, includes the Chief Justice, the National Assembly Speaker, the Speaker, the Deputy Speaker and the leader of the opposition party in the House of Representatives. The Law Minister also remains a member on the recommendation of the Chief Justice. The posts of Speaker and Deputy Speaker are vacant with the start of candidacy registration for the new House of Representatives elections. There has also been no opposition party leader since the dissolution of the House of Representatives on 27 Bhadra.

Article 129 (6) of the Constitution states that ‘if the office of the Chief Justice falls vacant or if the Chief Justice is unable to perform the duties of his office for any reason or if the Chief Justice is absent from the Supreme Court due to leave or departure from Nepal, the senior-most judge of the Supreme Court shall act as the acting Chief Justice.’ According to this constitutional provision, Malla will automatically be given the acting leadership.

The Judicial Council had sent the names of six people who met the qualifications prescribed by the constitution to the Constitutional Council on 27 Falgun. The senior-most judge of the Supreme Court, Sapana Pradhan Malla, and judges Manoj Kumar Sharma, Kumar Regmi, Hari Phuyal, Til Prasad Shrestha and Nahakul Subedi were recommended. Article 129 of the Constitution states that a person who has served as a judge of the Supreme Court for at least three years is eligible to be appointed as the Chief Justice.

Earlier too, the court had been run under acting leadership several times. The longest period of time was from 1 Falgun 2078 to 1 Ashad 2080. The then Chief Justice Cholendra Shamsher Jabra was suspended due to the registration of the impeachment motion. The judiciary was dependent on Kamu when the parliament kept the impeachment motion pending for a long time without making a decision. At that time, Deepak Kumar Karki was the acting Chief Justice. After he retired as the acting Chief Justice on 16 Ashad 2079, Harikrishna Karki took over the leadership of the judiciary. Nine months later, on 1 Ashad 2080, he became the Chief Justice, but he retired on 19 Shrawan due to age limit.

Earlier, Damodar Sharma was the acting Chief Justice from 29 Magh to 27 Chaitra in 2070. After the then Chief Justice Gopal Parajuli resigned due to a dispute over his educational certificate, Deepak Raj Joshi also remained in charge of Kamu for a long time. Parajuli resigned on 1 Chaitra in 2074. Joshi then became the acting Chief Justice until July 2075. He was in the running to become the Chief Justice, but after the parliamentary hearing committee did not approve his recommendation, Om Prakash Mishra became the Chief Justice on 25 Bhadra 2074.

Gopal Parajuli was also the acting Chief Justice for a short time. He was the acting Chief Justice for five days. After the impeachment motion against the then Chief Justice Sushila Karki was registered in the parliament on 17 Baisakh 2074, she was suspended. After that, Parajuli was acting until 22 Baisakh.

Nepal Bar Association President Vijay Prasad Mishra commented that the practice of running the judiciary on the basis of acting judges is wrong. ‘Running the judiciary on the basis of acting judges makes the court unstable. It also directly affects the administration of justice. Therefore, considering this, the Constitutional Council should be fully recommended and the Chief Justice should be appointed,’ he said.

How long will the acting Chief Justice be?

Harikrishna Karki 9 months

Deepak Kumar Karki 6 months

Damodar Sharma 6 months

Deepak Raj Joshi 4 months

Gopal Parajuli 5 days