A special bench of SC Justices Bal Ram KC, Gauri Dhakal and Bharat Raj Uprety said that the existing parliamentary hearings process was valid under the principle of checks and balance.[break]
Scrapping a writ petition filed against the PHSC´s mandate, the SC said that the parliamentary hearings process is an internationally accepted practice and should be considered necessary for strengthening the system of separation or powers.
Lawyers had filed a writ petition at the SC, describing the hearings process as interference in the independence of the judiciary.
"Hearings over judges do not mean interference in judicial independence," reads the SC ruling, adding, "Parliament´s right to know about a judge´s conduct, experience, knowledge, skill, contribution, qualification and impartiality is appropriate as per the theory of checks and balance."
The bench, however, directed the government to iron out procedural flaws in the PHSC. As per the existing provisions, the PHSC´s decision becomes valid even if only a single member of the committee supports a name recommended by the Constitutional Council (CC), Judicial Council (JC) or the cabinet.
The SC said it would elaborate on the procedural flaws at the PHSC in the full text of its ruling.
The SC made it clear that parliamentary hearings are essential. "No one can rule out the possibility of unfair, unjustified and inappropriate recommendations to any coveted post", reads the ruling, adding, "Parliamentary hearings are essential for checking and curbing such recommendations."
The SC also said that parliamentary hearings are required to discourage the recommending of candidates despite their misconduct, dishonesty or ineligibility.
"Parliamentary hearings are expected to discourage recommendations made through nepotism and favoritism," the ruling further reads.
The CC is entrusted with naming candidates for constitutional bodies like Public Service Commission, Commission for Investigation of Abuse of Authority (CIAA), Election Commission (EC) and Office of Auditor General (OAG). The CC is also entrusted with naming the new chief justice.
The CC´s recommendations come into effect only after the PHSC concurs through a hearings process.
The JC is entrusted with naming justices for the SC. Those recommended by the JC can assume their posts only after the PHSC confirms them.
Likewise, the names of ambassadors recommended by the cabinet also go to the PHSC for hearings. Ambassador-designates are confirmed after the PHSC approves their names.
At the beginning, some sitting SC justices and lawyers had criticized the provision on hearings for confirming SC justices.
The PSHC has been criticized mainly for its weak provisions. There have been suggestions that the PHSC´s decisions should be taken through a majority of its members.
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