Failed Candidate For Chief Justice

Failed Candidate For Chief Justice

Siddhi B Ranjitkar

The Parliamentary Hearing Special Committee (PHSC) declined to endorse the nomination of Deepak Raj Joshi for the position of the Supreme Court of Nepal by the two-thirds votes on August 3, 2018. The four NC opposition members out of the 15-member committee boycotted the voting. The refusal of the nomination has sent the strong waves in the Nepalese media, and in the politics and judiciary. Most of the logic put forward by the opposition NC members and some partisan attorneys have been bogus rather than enlightening, some legal experts opined.

Acting Chief Justice Deepak Raj Joshi probably would not have failed in the test the PHSC has given to him at the time of hearing on the recommendation the Constitutional Council has made for the position of the Chief Justice of the Supreme Court of Nepal if the Constitutional Council has taken a little bit of trouble to take a look at the certificates Joshi had provided, a constitutional expert opined.

Speaking to the anchor of the Radio Nepal morning program “antar-sambad” on August 4, 2018, Constitutional Expert Nilambar Acharya said that the situation of the PHSC rejecting the candidate for the Chief Justice would not have arisen had the Constitutional Council scrutinized the candidate. However, the Council has done the task of a post office only simply sending the recommendation for the position of the Chief Justice based on the seniority. It did not check the academic qualifications and the past performances of the candidate.

Answering to the question of the anchor Acharya also said that the rejection of the candidate did not make the PHSC supreme, as the media has overblown news, and some attorneys have said. It has simply followed the Constitution. It has neither weaken nor interfere in the judiciary rather it has strengthen the Supreme Court eliminating the weak and controversial candidate for the Chief Justice.

Concerning the alternatives Acting Chief Justice Joshi has are first he could go on holidays immediately, second he could resign, and third he could simply attend the office and do the regular work, said Acharya. However, the best alternative probably for Acting Chief Justice Joshi would be to honorably quit the job and live happily, opined Acharya.

Senior Advocate Surendra Kumar Mahto said that Joshi could continue as a justice of the Supreme Court until he retired at the age of 65. “Joshi has no constitutional hurdle to continue his job as a justice of the SC, as he has already been endorsed for this job,” he said. Answering the question about Joshi resigning on the moral grounds, Mahto said the question of morality depended purely on the person concerned, according to the news posted on https://thehimalayantimes.com/nepal/phc-rejects-joshee-for-cjs-post/.

PHSC rejected the chief justice nominee on August 3, 2018 stating that nominee Deepak Raj Joshi did not present the satisfactory and appropriate work plan on the judiciary and how to lead the judiciary, and also failed in giving the satisfactory answers to the questions PHSC members had put up about his conduct, integrity and capability, and even skip the question about the interim orders he issued to register the public land in the name of individuals stating the cases are still sub-judice, the local news media stated.

“Altogether 10 votes were cast against the nomination in the 15-member committee. As the joint regulations of parliament mention that a two-thirds majority of the hearings committee can reject any nomination; this committee has rejected the nomination of Deepak Raj Joshi accordingly,” PHSC Ad-hoc Chairperson Laxman Lal Karna told media after the meeting, the news on https://myrepublica.nagariknetwork.com/news/parliament-rejects-joshee-as-chief-justice/ stated.

The PHSC took the decision on the basis of two-thirds majority to scrap the recommendation of Joshi to the position of Chief Justice after NC lawmakers boycotted the meeting. A simple majority is sufficient to endorse the recommended candidate whereas the two-thirds majority is necessary to deny the candidate after the parliamentary hearing. The ruling coalition including the Federal Socialist Forum Nepal has two-thirds majority on the PHSC, according to the news on https://setopati.net/political/127155 posted on August 3, 2018.

The PHSC secretariat would send a letter to the Constitutional Council informing it about the fate of its nominee. The Constitutional Council had unanimously recommended Joshi for the position of chief justice in June 2018. Prime Minister and NCP chair KP Oli, main opposition NC President Sher Bahadur Deuba, Speaker Krishna Bahadur Mahara and Chairman of National Assembly Ganesh Timalsina are among the members of the council, the news on https://myrepublica.nagariknetwork.com/news/parliament-rejects-joshee-as-chief-justice/ stated.

The left parties had been against the Joshi’s nomination for a justice at the Supreme Court even in 2014. Then, the PHSC put the matter to a vote after members of the then CPN-UML and the Maoists along with two other fringe parties stood against his nomination; however, these two parties were in a minority on the PHSC at that time, Joshi was easily endorsed; these two parties had also voted against the nomination of former chief justice Gopal Parajuli for a justice at the Supreme Court, the news on https://myrepublica.nagariknetwork.com/news/parliament-rejects-joshee-as-chief-justice/ stated.

The Interim Constitution of 2007 had first introduced the PHSC to hold the parliamentary hearings on the nominees to the position of justices and the Chief Justice of the Supreme Court and to the heads and office bearers of constitutional bodies and ambassadors. Then, the Constitution of Federal Democratic Republic of Nepal of 2015 has given the continuity to the PHSC but it is downsized to 15 members from 72 in the past, the news on https://myrepublica.nagariknetwork.com/news/parliament-rejects-joshee-as-chief-justice/ stated.

After the two-thirds votes for denying the nomination of Joshi for the position of the Chief Justice held on the PHSC, PHSC member Yogesh Bhattarai read out the ruling parties’ arguments submitted to the panel to reject the Joshi’s name for the position of Chief Justice, and said, “The proposed candidate’s academic certificates issued by the education institution he had attended were suspicious and discrepancies in his date of birth also made it controversial; he neither produced adequate evidence nor furnished satisfactory answers to our questions,” the news on https://thehimalayantimes.com/nepal/phc-rejects-joshee-for-cjs-post/ stated.

The PHSC has found that Joshi had failed in English and elementary Nepali when he took the SLC examinations in 2027 (1970) from Bijay Memorial School with a symbol number 2958 ‘B’, according to the news on https://setopati.net/political/127155. “His sent-up test certificate does not even have signature of principal, and includes text above the stamp. There is also a difference of one month in the date of birth mentioned during his admission at Bijay Memorial and recent certificates,” a PHSC member told Setopati, according to the news on https://setopati.net/political/127155 posted on August 3, 2018.

Joshi published the certificate of SLC equivalent he acquired from Rastriya Vidyapeeth in Birgunj after his certificates caused controversy; and his character certificate also did not mention the symbol number; the progress report issued by the Tribhuvan University when he studied law mentioned that he passed SLC from Bijay Memorial in 2029 (1972) with a symbol number 3667; however, a person named Hem Raj Lekali had the same symbol number for the SLC examinations in 2029 (1972), the news on https://setopati.net/political/127155 stated on August 3, 2018.

Members on the PHSC have been dissatisfied with the Joshi’s presentation because Joshi had rejected the charges of corruption in delivery of justice and nexus with brokers during the hearing; he had also refused to answer questions about the interim orders he issued in the cases registering the public land in the name of individuals stating that the cases are still sub-judice, the news on https://setopati.net/political/127155 stated on August 3, 2018.

Four NC lawmakers on the PHSC were against putting the chief justice nominee to a vote; so, they boycotted the voting. They also said that the ability and eligibility of the nominee the Constitutional Council had already tested, accordingly recommended his name; so, the PHSC could not reject the nominee. So, they submitted a written note of dissent the PHSC stating that the Constitutional Council had already tested the Joshi’s nomination before recommending his name, the news on https://thehimalayantimes.com/nepal/phc-rejects-joshee-for-cjs-post/ stated.

The PHSC cannot invalidate the Joshi’s nomination, the NC lawmakers on the PHSC stated; and they said that the Constitutional Council had recommended Joshi for the position of the Chief Justice keeping in mind his social prestige, character, integrity, and the public sentiment regarding his performances, his past services and his experience. “It is in this backdrop we cannot agree with those lawmakers who want to reject CJ nominee without any reason or basis,” the NC lawmakers said in their statement, the news on https://thehimalayantimes.com/nepal/phc-rejects-joshee-for-cjs-post/ stated.

NCP-NCP lawmaker on PHSC Suman Raj Pyakurel said that the PHSC members had used their sovereign right to reject the CJ nominee for the first time; “This decision will deter nepotism and favoritism in constitutional appointments,” he added, the news on https://thehimalayantimes.com/nepal/phc-rejects-joshee-for-cjs-post/ stated.

Surely, this is a significant event in the history of judiciary. Future aspirants to the position of the Chief Justice of the Supreme Court of Nepal would probably be more careful to perform their duty sincerely and would probably strictly follow the moral of judges and justices rather than serving the personal interest of some individuals. In addition, they also would be more sincere in stating their date of birth and submitting their valid certificates of their academic qualifications.

The irony is that Joshi has once said that he has encouraged the Judicial Council to check the date of birth of former Chief Justice Gopal Parajuli, and contributed to exposing the two different dates of birth Parajuli had submitted, and sent Parajuli to the forced retirement. However, Joshi himself has been apparently careless to put his own academic qualifications and date of birth in order at least learning from the lesson of the fate of his predecessor. Is such a person appropriate to be the Chief Justice of the Supreme Court of Nepal?

Probably, four NC lawmakers on the PHSC suffering from the rejection of the nomination of Joshi for the Chief Justice have brought shame not only on them but also on the great political party such as NC, which has the history of fighting against the injustice. Putting a man with such questionable performances in the judiciary in the past, and the dubious academic qualifications, on the honorable position of the Chief Justice of Nepal, so publicized in the local media, and giving him the free hand in the judiciary would put the impartial delivery of justice in jeopardy or not would be the valid question common folks would ask about.

NC lawmakers would have been well off cooperating with all the members of the PHSC on eliminating any doubtful candidate for the position of the Chief Justice of the Supreme Court of Nepal; and they would not have tarnish their reputation supporting the candidate probably not so suitable for the job.

August 4, 2018