The very foundation of the rule of law depends on an independent, impartial, and competent judiciary. But persistent questions about the transparency of the appointment system within the judiciary are undermining public trust in the judicial institution. The debate has resurfaced over the appointments made by the Judicial Council, the criteria for recommendation, the secret decision-making process, and suspicions of political influence.

The Constitution of Nepal, 2072 BS, has provided for a separate institutional structure called the Judicial Council with the clear objective of ensuring the selection of judges free from political influence, based on merit and impartiality for judicial appointments. In order to maintain balance, diversity and expertise, it has a provision of the Chief Justice (Chairman), a senior-most judge of the Supreme Court, the Minister of Law, a representative of the Nepal Bar Association and a person nominated by the President. Although the essence of this multi-faceted structure of the Council is to remove politicization in judicial appointments, serious questions have been raised as to whether it is acting as a gateway for political influence. 

Reports prepared by international organizations on the judicial system of Nepal repeatedly state that ‘judicial appointments are opaque and politically influenced’. Questions of merit and transparency have been raised even in the appointments made a few months ago. However, since the Judicial Council does not make the details of the appointments public, no one is in a position to raise questions with evidence.

Systemically, some worrying aspects are evident, such as the fact that the pre-professional qualifications of some appointees are not fully known, that people without specific legal expertise are recommended, that there is no system to mandatory test legal writing, reasoning ability and experience in writing judgments. In addition, the lack of a formal system of integrity test or background screening raises questions about the quality of appointments and this continues to be the case. Most importantly, there is no provision for a ‘reasoned order’ in the decision of the Judicial Council. As a result, secrecy and non-transparency have prevailed in the entire process.

When I myself exercised my right to information and demanded ‘Why, to whom and on what basis were the judges appointed? Please provide the relevant documents, scorecard, evaluation criteria, reasons for recommendation’, the Council has not responded to it. In this regard, my appeal to the Information Commission is pending till date.

Important lessons can be learned from the practices adopted by developed judicial systems in the world to address the opacity seen in Nepal's judicial appointment process and questions raised on competence. In India's 'College System', the recommendation of judges was previously kept very secret. However, it has now been greatly improved. Now the basis and reasons for the recommendation of judges are disclosed publicly. In addition, a provision has been implemented to check the integrity and background details of candidates for appointment. This has increased transparency and credibility in judicial appointments.

In the UK, the 'Judicial Appointments Commission' (JAC) has adopted a very systematic system for merit-based selection. This commission invites all eligible persons to participate in the competition through open advertisements. Then, the appointment process is evaluated on the basis of marks. Practical tests are conducted to test the theoretical knowledge of the candidates as well as their practical performance, and finally the best candidate is selected through interviews. This process frees the appointment from the interest of individuals.

In Canada, there is a 'multiple scrutiny' system. The Judicial Appointments Advisory Committee conducts a multi-faceted evaluation of candidates before recommending judicial appointments. This committee includes community representatives, legal experts (legal scholars), and former judges. This team screens candidates through multiple levels of scrutiny (filter system) based on various criteria. This makes the appointment decision based on extensive advice and expertise rather than being limited to the hands of an individual or single party. 

We have no systematic examination to check qualifications, no basis for fair evaluation, no system to disclose the reasons for the recommendation, and no official report is prepared for background or integrity checks. There is only ‘discussion’ between the power centers and ‘secrecy’ that covers the entire process.

Some serious structural problems are responsible for the failure of the current model of judicial appointment process in Nepal. Its main weakness is the inevitable entry of political influence. The inclusion of the Law Minister as a member in the structure of the council opens the door to interference in the judiciary from the political sphere. In addition, the decision-making process of the Judicial Council is kept secret. No one in the general public knows why any appointment was made or who was recommended for whom.

Similarly, the qualification assessment is only ‘on paper’. There is no systematic system to measure the actual capabilities required for a judge (such as judgment writing, legal reasoning ability, and integrity). The lack of public hearings in the recommendations of the Judicial Council also makes full transparency impossible, as the general public is unable to question the qualifications and background of the appointee. Finally, the tendency to not respond in a timely manner or not at all when requesting details using the Right to Information seems to indicate that the judiciary itself is afraid of transparency. Due to all these structural weaknesses, the current model has completely failed to remove politicization in judicial appointments and prioritize merit.

It now seems necessary to amend the constitution itself to make the judicial appointment process in Nepal free from political influence and based on merit. Through this, the structure of the Judicial Council should be restructured. Political office-bearers (such as the Minister of Law) should be removed from the council and replaced with experts, law professors, sociologists, former judges, and inclusive members that ensure community representation.

Similarly, the appointment process should be made open and competitive. For this, it should be mandatory to call for clear advertisements, conduct written tests, conduct practical tests to test the professional skills of the candidates, and conduct judicial writing tests to assess their judicial capacity. In addition, to make the appointment decision objective, it should be mandatory to make the decision with reasons, that is, the council must provide a written answer to the question ‘Why?’ when recommending.

The evaluation criteria should be made legally binding. Under this, a clear scoring system should be made mandatory for each criterion such as integrity score, professional competence, publications/writing, experience, and court performance. In addition, to ensure transparency, it is necessary to make public hearings on the appointment recommendations and complete the question-and-answer process by the thematic committee. Finally, it should be mandatory to make the appointment documents public under the right to information of the constitution. It should include all the details such as the scorecard, reasons for recommendation, and evaluation comments, so that the entire process can be accountable and transparent.