Senior advocate Jagadish Dahal, a member of the Supreme Court Bar with nearly three decades of experience in corporate law, says the recent appointment of the Chief Justice, despite bypassing the traditional seniority line, remains constitutionally valid and legally sound. In this interview with ApEx, Dahal discusses the constitutional basis of the appointment, the debate surrounding judicial seniority, speculation over possible resignations by senior justices, concerns about political influence in the judiciary, and the challenges facing the new Chief Justice in leading judicial reform and restoring public trust. Excerpts:
What is your view on the recent Chief Justice appointment, where the seniority line was bypassed?
If we look at the past—particularly before 1990, during the monarchy—the state followed a “pick-and-choose” approach. The King could appoint any Supreme Court justice deemed suitable for the position of Chief Justice. However, after the restoration of democracy and the promulgation of the 1990 Constitution, the seniority system was strictly followed. Until now, no lower-ranked justice had been appointed by bypassing more senior judges. That is precisely why this decision has generated so much debate, scrutiny, and mixed reaction in the media.
If we examine the Constitution and the law, the Judicial Council may recommend any eligible permanent Supreme Court justice who has completed at least three years of service. From a purely constitutional standpoint, the newly appointed Chief Justice fulfilled these requirements.
The Judicial Council, chaired by the sitting or acting Chief Justice, forwarded a list of eligible candidates to the Constitutional Council. The Constitutional Council then assessed those candidates based on experience, competence, decision-making ability, and professional integrity. It selected the individual it believed was best suited to lead the judiciary for the designated term. Since the recommendation was unanimously endorsed by the Parliamentary Hearing Committee and formally appointed by the President, any continuing public debate over “who should or should not have been chosen” no longer holds practical relevance. We should now move forward with optimism, extend our congratulations, and hope the new leadership guides the judiciary in accordance with the spirit of the Constitution.
Has this happened before since 1990? What precedent does it set?
No. Since 1990, there has been no precedent for intentionally bypassing the seniority roll in the appointment of a Chief Justice. There have been rare instances in which a senior justice passed away, allowing someone lower in the order to assume the role earlier than expected. However, deliberately altering the sequence while senior justices were still serving has not occurred in our democratic history.
That said, once the Judicial Council submits a list of eligible sitting justices to the Constitutional Council, the latter has the authority to select the most suitable candidate from among them. Therefore, claiming that this appointment is unconstitutional, illegal, or invalid simply because the seniority order was altered is baseless. The process complied with constitutional procedures, followed the law, and was carried out through proper institutional channels.
This appointment certainly establishes a precedent that any sitting Supreme Court justice who meets the constitutional criteria may be recommended and appointed if the state and Parliament consider them the most capable candidate. We should not automatically view this as a negative precedent. It may instead reflect an adaptation to the demands of the time. Rather than anticipating adverse consequences, we should hope for a positive impact on the judiciary’s performance.
Should the bypassed senior justices quit?
I have seen media reports and heard speculation that the senior justices might resign. There are also rumors that the new Chief Justice may sideline them by withholding bench assignments, or that they are being targeted because they were appointed under different political circumstances.
I do not believe they will resign, nor do I think they should. There is no constitutional or legal mechanism that could compel them to resign. Furthermore, I do not expect the new Chief Justice to harbor any hostility toward them. He will assign them benches, seek their cooperation, and accord them the respect they deserve. A capable leader manages the judiciary by fostering collaboration and maintaining institutional harmony, and I believe the current Chief Justice has the acumen to preserve a dignified and cooperative environment among all justices.
Could a strong government influence CJ?
When the Constituent Assembly drafted and promulgated the 2015 Constitution, it designed the terms of Parliament, the Prime Minister, and the Chief Justice by drawing from global parliamentary practices while adapting them to Nepal’s unique context.
We should not prematurely assume that a majority government—even one approaching a two-thirds majority—will necessarily complete a full five-year term without disruption, or that a particular Prime Minister or party will remain politically unchallenged. Nepal’s parliamentary history, the instability of previous governments, and the influence of geopolitics on domestic affairs all remind us that politics can change unexpectedly.
While the Constitution envisions full institutional terms, and we naturally hope both the executive and judiciary complete their mandates without interruption, history shows that unforeseen crises can and do arise. We have seen Chief Justices resign under pressure, and majority governments dissolve Parliament and call snap elections.
When we consider the changing nature of society, the younger generation’s growing aspirations, and the political shifts that brought the current government to power, it is clear that citizens are impatient for change. Given Nepal’s limited resources and broader global economic pressures, maintaining complete stability is always difficult. Therefore, rather than speculating about political influence or guaranteed timelines, we should hope that every organ of the state fulfills its constitutional responsibilities independently and successfully completes its tenure.
Can the new Chief Justice build a fair and controversy-free judiciary?
It is still too early to fully assess the new Chief Justice’s leadership or predict the trajectory of his tenure. However, he is undoubtedly regarded as a highly scholarly, capable, and competent judge. Since his appointment to the Supreme Court, his performance has been strong and largely free from controversy. He distinguished himself through his work as a justice, which is precisely why the state selected him for this leadership role.
Leading the entire judiciary and overseeing appointments across the Supreme Court, high courts, and district courts is undoubtedly a monumental challenge. The judiciary has struggled for long with case backlogs, institutional inefficiencies, and political scrutiny. Nevertheless, given his clean record and legal expertise, it is entirely possible that he could steer the institution toward a more transparent and merit-based future.
If he maintains the same integrity he demonstrated as a justice and resists external political pressure, establishing a fairer and less controversial judiciary is well within reach. What is most important now is to give him the time and institutional support necessary to prove his leadership.
