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Legal Eye 36 Objection Overruled Appointments of Anup Raj Sharma and Balram K.C., none of them Appellate Court judges, to the Supreme Court Bench have come under fire from the establishment. But Sharma and K.C. both have solid track records and the judiciary has to free itself from conventional trappings if it is to establish meritocracy in its ranks BY JOGENDRA GHIMIRE It’s not just the country’s executive, or absence of one, that is in the news. Recently, there has been some controversy over the appointment of two senior practicing advocates—Anup Raj Sharma and Balaram K.C.—as the judges of the Supreme Court. The appointment of practicing lawyers to the highest Bench is a rather rare happening in our judiciary, which is used to promoting career civil servants and career judges right up to the highest echelons. In the past, such appointments have been fairly low-key affairs since the constituency that was directly affected by such appointments—the Appellate Court judges, the senior members of the Bar and eligible academics—generally kept silent over such appointments. The two recent additions to the Bench, however, have disturbed the ranks, especially the Appellate Court justices, so much that they have gone so far as to petition the King against the appointments. The outrage is palpable. Their criticism revolves around a few points. The duo were junior compared to a number of sitting Appellate judges; and, that appointment of Sharma directly as a permanent judge without having served as an ad hoc judge, the route most judges in the apex court normally take, is a deviation from a time-honored tradition. These arguments are limp. The judiciary has to free itself from bureaucratic trappings, if it is to establish meritocracy in its ranks. Both Sharma and K.C. have great track records—Sharma as a successful commercial lawyer and K.C. as a government prosecutor and, since his retirement from the government, as a litigator and arbitrator of repute. They are undoubtedly among the brightest members of the Bar and have a sound understanding of Nepal’s judicial system. Indeed, they are junior to some of the judges in the Appellate Court. But those who say they have greater claims, and not Messrs K.C. and Sharma, to the Supreme Court based on their seniority are ignoring perhaps the most important underlying philosophy. That of the Constitution, which provides no guarantee to appointments to the apex court based on seniority. It is not a process of natural progression. Sharma and K.C. are only two of the 10 individuals who have been appointed as permanent or ad hoc justices of the apex court during the last two lots of appointments. Every other individual who has been appointed as an ad hoc judge or confirmed as a permanent judge was from among the Appellate judges. Considering that a far fewer number of lawyers who get appointed to the apex court compared to sitting judges of the Appellate Courts, the obvious question before us is: what was so different about these appointments that outraged the Appellate judges so much? This reaction can be best understood keeping in view most of the post-1990 appointments, which seem to have created an impression that the apex court positions were the preserves of the career judicial officers and lower court judges. This seems to have given credence to the conventional theory that those from outside the Appellate Courts essentially come in to bite off chunks from the pie—to borrow an expression used recently by a retired Supreme Court justice, Krishna Jung Rayamajhi. The tendency to take the easy route by appointing the seniormost of the Appellate judges to the apex court has been doubly retarding. It makes the Apellate judges professionally complacent; it also frustrates far more capable lawyers and judges in the lower courts who don’t have a shot at the Supreme Court Bench despite their competence. The fundamental problem lies with the twin issues of seniority and service with the government—both against the letter and spirit of the Constitution. We have been obsessed with the idea of appointing the seniormost of the Appellate judges to the Supreme Court without actually looking into the competence of the individual under question. The Constitution, in fact, looks for neither the seniormost individual, nor for an Appellate judge. What it looks for are competent jurists who have either been an Appellate judge for at least 10 years or have been practicing lawyers or law researchers for at least 15. Beyond this, it is purely individual competence that ought to be the deciding factor—not seniority or X number of years one has put in government service. MAY 30, 2004 | nation weekly
Vacancy Announcement The International Committee of the Red Cross (ICRC), an independent humanitarian organization whose mandate is to provide protection and assistance for victims of armed conflict and internal disturbances has regularly vacancies for: Your tasks EXPATRIATE NEPALI INTERPRETERS/ TRANSLATORS n Oral interpretation: from Nepali to English, and English to Nepali during confidential interviews with persons detained in prisons, ICRC institutional dissemination and visits to families of detainees n Written translation: translation of written Nepali (newspaper articles, correspondence, etc.) into written English n Analysis and reporting: analysis of conditions of detention, general situation and other matters relating to the ICRC’s mandate Selection requirements n Ideal age: 25 to 35 n Either single or prepared to accept an unaccompanied posting of at least one year n University education or 5 years of professional experience n Excellent command of English, French an asset n Familiarity with word processing and spreadsheet software n Driving license (a license for automatic-transmission vehicles only is not sufficient) Your Profile n Strongly motivated by humanitarian work n Open-minded and adaptable, able to work in a team n Neat appearance, good speaker, well-developed writing and summarizing skills n Able to work under pressure in a potentially dangerous environment n Ready to travel to remote areas all over Nepal on a regular basis What we offer n An opportunity to help the victims of conflict n Engrossing, rewarding work in unusual situations n Ample support in integrating into the new working environment How to apply Interested candidates are invited to send their CV with a cover letter, a recent photograph, copy of certificates, a contact telephone number and the ICRC application form (available on the website www.icrc.org ) to the following address: Laurent GISEL Deputy Head of Delegation International Committee of the Red Cross Meen Bhawan, Naya Baneshwor G.P.O. Box 21225, Kathmandu Phone: 4482 285/4492 679 e-mail:katmandu.kat@ icrc.org; www.icrc.org nation weekly | MAY 30, 2004 Graphic Designer Key Responsibility: Design various print publications published by the organization. Minimum Requirement: Competent in Computer based layout and graphic designing with minimum 2 years of experience. Jobs Computer Graphics Operator Key Responsibility: Assist in designing various print publications published by the organization. Minimum Requirement: Competent in graphic designing programs such as, Adobe Photoshop, PageMaker, Corel Draw etc. Pre-Press knowledge in publishing will be an advantage. Subscription Representative Key Responsibility: Solicit subscription and broaden the outreach of the various publications published by the organization. Marketing Officer Key Responsibility: Market the various publication and services offered by the organization. Receptionist Key Responsibility: Manage office telecommunication, fix appointments, file correspondence and administer front office duties. Minimum Requirement: Intermediate with secretarial training. Interested applicants must send their CV/Bio-data by E-mail, indicating the position applied for and the expected salary. Also mention your contact address and your day telephone number. Successful candidates will be called in for interviews. E-mail: jobsvacancies@yahoo.com Tel: 2111102 We are a publishing organization willing to learn and improve with every initiative. If you believe that creativity is a process and that there is no substitution for hard work, here is an opportunity to join an inspirational team of professionals. Vacancies 37
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