Seniority over Justice

TRANSCEND MEMBERS, 18 May 2026

Bishnu Pathak – TRANSCEND Media Service

“There is suffering; there is a cause of suffering; there is a cessation of suffering; and there is a path leading to the cessation of suffering.” — Gautam Buddha

Abstract

This study investigates the shifting dynamics of judicial appointments in Nepal, focusing on the tension between seniority‑based succession and meritocratic selection. Historically, the judiciary privileged seniority as a mechanism of continuity, but the Constitutional Council’s recommendation of Dr. Manoj Kumar Sharma as the 33rd Chief Justice—despite his fourth‑place ranking in seniority—marks a constitutional departure. His nomination, justified by academic and professional distinction, reflects broader societal demands for transparency, accountability, and institutional reform in an era of heightened civic activism.

The analysis situates this development within competing philosophical frameworks: deontological justice, which emphasizes rule‑based adherence to seniority, and teleological justice, which prioritizes outcome‑oriented meritocracy. It further interrogates controversies surrounding judicial independence, political interference, and the Constitutional Council’s role while drawing on corruption inquiries, such as the report from the committee led by former Chief Justice Hari Krishna Karki. Comparative insights from South Asia and global contexts demonstrate how merit‑based selection can enhance accountability and public confidence in judicial institutions.

Ultimately, the study contends that privileging merit over seniority is essential to reinforce judicial legitimacy, safeguard fundamental rights, and prevent democratic backsliding in Nepal. The author embraces the philosophy of “I know that I do not know,” welcoming critique, feedback, dialogue/discussion, and further research to advance the discourse on seniority over justice.

Introduction

In the official competition, six finalists progressed to the final stage, overseen by six members of the recommendation committee. Traditionally, the candidate with the highest seniority always emerged victorious, while the other contenders served mainly as symbolic participants to maintain the appearance of competition. However, on this occasion, the fourth-ranked contender won based on merit (Nepal News, March 10, 2026). Four selection committee members prioritized ability over seniority, while two stuck to traditional views, arguing—both publicly and within the legislature—that seniority should be the sole determinant of the outcome. This episode unfolded within Nepal’s judicial system, marking a significant departure from entrenched precedent or established norms.

On May 7, 2026, the Constitutional Council, led by Prime Minister Balendra Shah, recommended Dr. Sharma—ranked fourth in seniority but distinguished by academic and professional accomplishments—for the position of Chief Justice of Nepal. This decision broke the long-standing tradition of promoting the most senior justice, bypassing Justice Sapana Pradhan Malla (Neupane, May 9, 2026), a former activist and parliamentarian of the Communist Party of Nepal (UML). This move has sparked discussions across judicial, political, and civic circles, indicating a shift from seniority-based succession to merit-based evaluation.

The Shah administration, elected in April 2026 amidst Generation Z activism and sacrifice, was driven by calls for corruption-free institutions and transparent governance with accountability (Pathak, September 22 and December 15, 2025). The judiciary, historically criticized for corruption and lack of transparency, now faces increased scrutiny. Judges implicated in irregularities, unexplained wealth accumulation, and questionable practices since 1990 shall face accountability under new judicial leadership.

The Council’s recommendation represents a constitutional milestone and a broader change in judicial philosophy. It challenges the balance between tradition and merit, questions the role of political authority in judicial appointments, and tests the judiciary’s ability to address entrenched issues while embracing democratic reform in Nepal (Pathak, April 6, 2026).

The conflict of seniority over justice represents a merit-based, contemporary approach to judicial appointments, directly contrasting with the traditional justice over seniority framework that prioritizes institutional stability. Critics argue that reliance on seniority invites political interference, as appointees may show loyalty to their nominators or old political institutions. Such deviations can introduce arbitrariness, allowing executives to choose judges based on political alignment rather than objective merit. When political expediency replaces clear performance criteria, the judiciary risks stagnation and compromised impartiality.

The opposition between ‘seniority over justice’ and ‘justice over seniority’ encapsulates two divergent strands in modern political, legal, and judicial philosophy. The former promotes a merit-based paradigm that values talent and accountability over hierarchical succession, while the latter defends continuity by elevating seniority even at the expense of merit. This dialectic highlights the ongoing tension between reformist impulses seeking excellence and traditionalist safeguards of stability, illustrating how judicial appointments embody the broader struggle to balance independence, fairness, and democratic legitimacy.

Seniority over justice reflects a deontological conception of justice, grounded in duty, rules, and principles, where legitimacy stems from adherence to established norms, regardless of outcomes. In contrast, justice over seniority aligns with the teleological justice notion, which defines fairness by ends, goals, and consequences—prioritizing outcomes such as welfare, equity, and efficiency. This consequentialist instrumental approach is essential to meritocracy and utilitarianism, maximizing independence, fairness, and efficiency while rejecting downward gerontocracy. It emphasizes justice as an outcome, seeking the most competent, hardworking, morally upright, upward, and intellectually capable individuals to hold positions of authority and deliver sound judgments.

While deontological justice may seem inflexible in disregarding practical consequences, teleological justice justifies actions insofar as they produce beneficial ends (Kymlicka, October 1988 & Hutchinson, undated). Therefore, seniority over justice seeks to select the most qualified individuals to enhance governance through efficiency and accountability, curbing backroom deals (setting) and legitimizing the choice of a more productive junior judge over a less effective senior one. This approach strengthens the judiciary’s potential for reform across both horizontal and vertical dimensions. The study ultimately contends that justice must challenge seniority to enable excellence and talent to thrive through a bottom-up approach within democratic systems.

Lastly, this study places Nepal’s judicial evolution within a comparative context. The tension between meritocracy and seniority influences justice delivery and suggests paths toward a victim-centered and timely judiciary. Similar challenges of backlog and lack of transparency persist in India, Bangladesh, and Sri Lanka, while global examples from the UK and South Africa demonstrate how merit-based selection processes can improve accountability and public trust.

As a result, the Nepali population as a whole view the competition at the center as a question of judicial governance and accountability, rather than as a way to protect partisan interests and safeguard leaders and judges themselves.

Ascension of Dr. Manoj Kumar Sharma

Dr. Sharma, born in 1970 in the mid-Tarai region of Birgunj, Nepal, is a legal professional with a diverse background. He holds an LLB from Nepal Law Campus, an LLM in Commercial and Constitutional Law from Pune University, India, and a PhD in Labor Law from Tribhuvan University. Sharma started his career as an advocate in 1995 and has worked as a consultant in commercial law and as a lecturer (Nepal News, May 7, 2026, and Himal Press, May 7, 2026).

In a departure from tradition, PM Balen-led Constitutional Council recommended Sharma, the fourth most senior justice, for the position of chief justice of Nepal, bypassing three senior candidates. This decision has sparked discussions across various sectors. Despite not being known for significant constitutional rulings or extensive judicial writing, Sharma’s nomination for Chief Justice has raised interest. With the expected endorsement by the Parliamentary Hearing Committee, Sharma, at 56 years old, is poised to become Nepal’s 33rd chief justice for a full six-year term.

Sharma, the nephew of former Chief Justice Damodar Prasad Sharma, previously served as an additional judge at appellate courts. His appointment to the Supreme Court in 2019 faced challenges but was ultimately upheld. His rise to the apex of the judiciary has prompted questions about the factors influencing his selection and the dynamics of power.

Paradox of Seniority

On May 9, 2026, on the occasion of the 74th Law Day, Acting Chief Justice Sapna Pradhan Malla delivered a significant address concerning the institutional independence of the Nepalese judiciary. Against the backdrop of the Constitutional Council’s controversial recommendation for the chief justice recommendation—which bypassed established principles of seniority—Malla raised rigorous constitutional questions. She expressed profound skepticism regarding whether insidious attempts were underway to engineer an “obedient judiciary” and cultivate an unequal application of the rule of law under the pretext of exercising statutory authority. She maintained a steadfast position that any propensity to transform the court into a facade for safeguarding political interests, rather than a definitive sanctuary for justice, remains entirely unacceptable (Setopati Reporter, May 9, 2026).

Building upon this institutional critique, Malla openly censured the systemic pressures exerted upon the bench by political parties. Declaring that “justice cannot be dispensed under fear or influence, whether it be the intimidation of a two-thirds majority government or the threat of impeachment,” she unequivocally asserted that the judiciary would never capitulate to a powerful executive or threats of summary removal (Online Nepal, May 9, 2026). Consequently, she exhorted judicial professionals to rise above political constraints, urging them to adjudicate with elevated morale and unwavering impartiality.

Central to her address was the assertion that no organ of the state, government, or public official can transcend the Constitution and the tenets of constitutional morality. Warning against institutional tendencies that subvert the rule of law, Malla issued a grave admonition: “One cannot guarantee that a tiger that devours one person will spare another; hence, actions executed by assassinating the rule of law ultimately culminate in authoritarianism.” She further posited that the manipulation and misinterpretation of statutes by rulers under the guise of political justification constitute absolute arbitrariness (Online Khabar, May 9, 2026).

Furthermore, Malla directly addressed a contemporary institutional friction, responding to a query previously raised by the Speaker of the House regarding whether the judiciary could operate at the “speed of the government.” She clarified that the judiciary is fully prepared to operate in alignment with both the spirit of the Constitution and the operational velocity of the executive. However, she maintained that for this synergy to materialize, it is imperative for political leadership to abandon its inclination to control the bench and instead equip the institution with adequate resources, infrastructure, and human capital (Hamrakura, May 9, 2026).

Concluding her address by recalling her lifelong commitment to combating discrimination and injustice since her tenure as a legal practitioner, Malla remarked that the crusade for judicial independence remains far from concluded. To sustain this vital democratic struggle, she issued a fervent appeal to the Nepal Bar Association, the media, and civil society to consolidate their efforts and stand resolutely in solidarity. Ultimately, she emphasized that such a united front is indispensable to safeguard the independence, dignity, and overarching institutional integrity of the judiciary, alongside the preservation of citizens’ fundamental rights.

Judgments controversy

During Prime Minister K.P. Sharma Oli’s tenure, fifty‑two constitutional officials were appointed through executive ordinances in two phases. In the first phase, thirty‑two officials were recommended on December 15, 2020, and sworn in on February 3, 2021, bypassing mandatory parliamentary hearings. In the second phase, twenty additional officials were recommended on May 16, 2021, and sworn in on June 24, 2021, with the government citing parliamentary dissolution as justification for avoiding legislative scrutiny. After a protracted dispute lasting four and a half years, the Constitutional Bench of the Supreme Court delivered a landmark 3–2 split verdict on July 2, 2025, affirming the validity of both phases (BBC, July 3, 2025).

The majority opinion, authored by Justices Malla, Dr. Sharma, and Dr. Kumar Chudal, dismissed the writ petitions by invoking institutional continuity and the Doctrine of Laches. They reasoned that retroactive annulment would create an administrative vacuum, as the appointees had actively served in critical state roles during the pendency of the petitions. Accordingly, they prioritized stability and institutional preservation over judicial nullification (Onlinekhabar, July 3, 2025; Himalaya Times, July 3, 2025).

In dissent, Chief Justice Prakash Man Singh Raut and Justice Dr. Nahakul Subedi called for complete invalidation, citing grave procedural irregularities and violations of constitutional ethics. They argued that bypassing parliament, disregarding quorum requirements, and omitting mandatory hearings undermined democratic checks and balances. For them, executive overreach could not be legitimized retroactively through delay, warning that such validation fosters lawlessness and erodes the rule of law.

On May 10, 2026, the Supreme Court issued two significant interim orders suspending government decisions to dissolve employee trade unions and prohibit student organizations. The constitutional bench, by majority opinion, halted the dissolution of trade unions, while a single bench suspended the ban on student organizations. These rulings underscore the judiciary’s role in safeguarding fundamental rights and balancing executive authority with democratic accountability.

The government had invoked Article 114 of the Constitution to deregister twelve employee unions, including those affiliated with major political parties and professional associations. In response, Bhawani Dahal, President of the Civil Service Employees’ Organization, filed a writ petition. The Constitutional Bench, led by Acting Chief Justice Malla, split 3–2: the majority granted interim relief, while the dissent argued that ordinances retain legal force until Parliament decides otherwise (Shilapatra, May 11, 2026).

In a parallel case, Justice Shrikant Paudel issued an interim order suspending the government’s ban on student organizations, responding to a writ filed by ANNFSU President Deepak Dhami. The court held that the bans of March 26 and April 2 violated constitutionally guaranteed rights to association, directing that the University Coordination Committee’s resolutions not be enforced pending review (Dulal, May 12, 2026).

These interim orders highlight the judiciary’s pivotal role in Nepal’s democratic trajectory. They reveal tensions between executive reliance on ordinances, judicial protection of constitutional rights, and broader debates on governance, accountability, and legitimacy.

The constitutional bench’s division over trade union dissolution illustrates this dialectic. The majority—Acting Chief Justice Malla, Justices Kumar Regmi, and Hari Phuyal—emphasized constitutional guarantees of freedom of association (Article 17) and collective bargaining rights (Article 34(3)). They argued that the Civil Service Act, prior to amendment, explicitly safeguarded union representation and that the government’s ordinance posed an immediate threat to fundamental rights. Their interim order thus underscored the judiciary’s role as guardian of democratic freedoms (Hamropatro, May 12, 2026).

Conversely, Justices Binod Sharma and Sharanga Subedi dissented, stressing procedural fidelity. They contended that ordinances under Article 114 carry the force of law until Parliament acts, and since Parliament had already convened, the petitioner faced no irreparable harm. For them, judicial restraint was necessary to avoid undermining constitutional processes. Their position reflects a deontological commitment to procedural legitimacy, contrasting with the majority’s teleological emphasis on preventing rights violations.

This division epitomizes Nepal’s judicial dialectic: whether to prioritize substantive constitutional rights requiring immediate protection or to defer to procedural mechanisms that preserve institutional continuity. The majority’s intervention situates the Court as an active defender of democratic freedoms, while the dissent underscores caution against judicial overreach. Together, these opinions illuminate the evolving contestation over judicial governance in Nepal, situating its constitutional trajectory within comparative South Asian debates on independence, accountability, and legitimacy.

Historically, only a few judges supported merit‑based recommendations, while most favored seniority. This emphasis on hierarchical rank over qualifications reinforced institutional stability but marginalized meritocratic evaluation, raising concerns about judicial independence and transparency.

When Acting Chief Justice Sapana Pradhan Malla was not recommended by the Constitutional Council on Law Day, she strongly opposed the decision of the two‑thirds majority government, framing it as a conflict between meritocracy and seniority. Her challenge underscored the importance of judicial independence and constitutional values. Yet her support, partly shaped by partisan alignments, has gradually weakened. At present, her principal allies are Justices Kumar Regmi and Hari Phuyal, ranked second and third in seniority, both positioned for future leadership as chief justice. This episode illustrates how Nepal’s judiciary is negotiating the balance between tradition and reform, situating its struggle within broader debates on governance, independence, and legitimacy.

Finally, it is important to note that judges designated as future chief justices are perceived differently by colleagues, government officials, and court staff, leading to persistent discrimination within the judiciary. These distinctions manifest in varying levels of cooperation and support extended to prospective Chief Justices compared to other judges, reflecting enduring institutional hierarchies.

Critiques

However, this public defense of judicial independence has drawn sharp criticism from political and legal commentators, who view such rhetoric through a lens of institutional skepticism. Critics invoke a pertinent vernacular adage: “When ordered to sever the thief’s leg, the unidentified thief in the crowd reflexively retracts their own.” In a similar vein, detractors argue that the current judicial leadership has overlooked its own historical trajectory, having previously ascended to the Supreme Court bench via the strategic machinations and quota allocations of the CPN (UML). Indeed, when the Constitutional Council executed these appointments a decade ago, it included individuals who were former members of Parliament directly representing partisan interests.

It remains a matter of public record that these appointments were part of a long-term, calculated strategy designed to ensure that individuals aligned with the CPN (UML) and the Nepali Congress would sequentially occupy the office of chief justice until the year 2037. The widespread public and institutional backlash generated by the Constitutional Council’s decisions at that time remains fresh in the collective memory.

Furthermore, analysts point out that if the current recommendation of Dr. Sharma were genuinely unconstitutional, the Nepal Bar Association would have launched a robust institutional resistance rather than merely issuing a routine press release. Aside from those visibly identified as political sycophants, virtually no credible voice has emerged to defend the outgoing judicial status quo. Consequently, recent public lamentations from the bench appear to stem not from a genuine defense of judicial sanctity, but rather from the disruption of entrenched, partisan networks.

More critically, this institutional friction raises the question of whether such outbursts are fueled by a fear of legal reprisal and retroactive investigations into past collusive judgments and illicitly acquired assets. Ultimately, applying the psychological maxim that actors project their own structural flaws onto others, critics maintain that the broader public celebrates the appointment of the highly competent Dr. Sharma as a disruption of old networks.

On May 10, 2026, constitutional expert Professor Bipin Adhikari commented on the controversy surrounding Acting Chief Justice Malla’s recommendation, stating that the issue of seniority has sparked widespread discussion in Nepalese media, legal circles, and civil society. This debate is crucial for the independence and fairness of the judiciary and is likely to continue. However, Professor Adhikari advised that it would be inappropriate for the acting chief justice to personally involve herself in the controversy. Given her position as the most senior jurist, she should focus on discussing broader topics like judicial independence, constitutional norms, and the court’s institutional integrity. It would be wise for her to avoid making statements that could be seen as taking sides in disputes related to her own seniority or recommendation.

Corruption in Judiciary

In response to growing concerns and public pressure regarding corruption within the judiciary, the Supreme Court of Nepal took a significant step in July 2020. Chief Justice Cholendra Shumsher Rana established a high-level judicial committee led by former Chief Justice Hari Krishna Karki to investigate complaints of corruption and irregularities within the courts. After a thorough year-long investigation, the committee submitted a detailed 250-page report to Chief Justice Rana, who publicly committed to implementing the recommendations, acknowledging the corruption within the institution (Ghimire, October 24, 2024).

The committee’s mandate was to investigate potential distortions, anomalies, irregularities, and corruption within the judiciary, particularly related to intermediaries, and propose measures to prevent such issues. The findings revealed systemic weaknesses rather than isolated incidents, with judges being influenced by political parties, senior officials, and powerful individuals, compromising judicial independence and constitutional values. The report highlighted how personal connections, nepotism, and partisan affiliations often influenced case adjudication, leading to unreliable judicial decisions.

Bribery and financial incentives further exacerbated these issues, eroding public trust in the judiciary. Internal dysfunction within the courts was also noted, with a lack of coordination between judges and staff impacting administrative efficiency. The report emphasized the crucial role of the chief justice and the judicial council in addressing deviations among judges. It also called for a review of the chief justice’s role in the Constitutional Council and the effectiveness of the Constitutional Bench and parliamentary hearings of judges (Mahara, July 30, 2021).

Structural reforms were deemed necessary, starting from transparent judicial appointment processes to address distortions at the initial stage. The report recommended a transparent system for judicial transfers and disciplinary actions to address frustrations among court personnel. It also proposed implementing an automated cause list system to prevent corruption in bench formation and case assignment.

Additionally, the report suggested establishing a separate mechanism involving the courts, the Bar, and investigative experts to address issues of corruption and influence within the judiciary. It recommended maintaining records of lawyers’ income to ensure accountability and prevent additional payments for case allocation. Overall, the Karki report provided a comprehensive roadmap for reform for governance, addressing constitutional, institutional, and procedural aspects to combat corruption and restore public trust in the judiciary.

The assertion that “there is collusion in the courts and corruption is prevalent” is not a new revelation. The committee led by Shrihari Aryal initially introduced the concept of intermediaries. It was identified that 29 different types of intermediaries are operating within the judiciary. Subsequently, the committee overseen by Ram Prasad Shrestha also confirmed the existence of corruption and intermediaries in the courts. The Bar Association’s report suggested that if the Chief Justice were honest, 60 percent of the judiciary’s issues would be automatically resolved. Shrestha’s report took it a step further, stating that with an upright chief justice, 80 percent of the problems could be resolved (Kantipur Reporter, July 30, 2021).

As reported by Kantipur on July 30, 2021, the committee members were affiliated with various political parties, illustrating the politicization of judicial oversight. However, the fundamental issue remains the need for integrity to be intrinsic. If the recommendations from the Bar’s 2007 (2064 B.S.) report had been implemented, the judiciary would have moved closer to an ideal state of justice. Unfortunately, the Supreme Court did not adopt these recommendations. The committee led by Shrestha, which included four Supreme Court justices and was appointed by Chief Justice Anup Raj Sharma, produced a report that Sharma decided to make public on the last day of his tenure. Although the report was initially approved for posting on the Court’s website by spokesperson Shrikant Poudel, it mysteriously disappeared the next day. The incumbent chief justice has pledged to release this report and others prepared by Girish Chandra Lal, Anil Kumar Sinha, and additional individuals, but in vain.

It is widely acknowledged by Nepalis and even foreigners with close ties to Nepal that corruption is rampant in the judiciary. The crucial question remains: who will address this issue? There is no independent body to monitor judicial assets, and successive chief justices have not shown the courage to investigate corruption. Efforts to combat corruption are hindered by the fear that the chief justice may be implicated. When Dr. Sharma, a candidate for chief justice, hinted at investigating corruption, it caused significant unrest among judges and staff in the judiciary.

Cost of Apportionment

An academic and empirical analysis of these competing narratives demonstrates that the appointment of judicial officials through political machinations and quota‑sharing arrangements fundamentally undermines public trust in the judiciary. The case for a strict commitment to meritocratic principles—as the only viable antidote to institutional decay—can be articulated through five core dimensions:

• Crisis of Institutional Legitimacy: The judiciary has long been revered as the ultimate bastion of justice. Yet when appointments are perceived as products of political horse trading, verdicts appear dictated by partisan directives rather than legal reasoning. Where the personal integrity of adjudicators is contested, litigants view rulings through the prism of vendetta or collusion, thereby hollowing the court’s moral authority to issue binding decrees.
• Erosion of Faith in the Rule of Law: Politicization undermines the democratic axiom of equality before the law. Citizens increasingly believe that justice is accessible only through wealth, nepotism, or political leverage. Even impartial verdicts delivered by politically appointed judges are met with suspicion, engendering systemic skepticism that corrodes the credibility of the entire judicial framework.
• Degradation of Contempt Jurisprudence: The misuse of “contempt of court” to suppress dissent and media scrutiny fosters fear rather than genuine respect. As collusive practices become visible, citizens resort to social media and public protest to challenge judicial rulings. This backlash jeopardizes the physical security, institutional sanctity, and dignity of the courts.
• Ascendancy of Mob Justice: When impartial adjudication is perceived as unattainable, citizens turn to vigilantism and extrajudicial coercion. Disputes are resolved through political pressure or mob rule, destabilizing the social order and weakening institutional authority.
• Tarnishing Nepal’s Judicial Image: International actors—including human rights organizations and investors—evaluate judicial independence before engaging diplomatically or economically. Political manipulation and partisan hostility diminish Nepal’s standing in the rule of law index, deterring foreign investment and undermining international cooperation.

Ultimately, public trust constitutes the judiciary’s foundational power and definitive armor. When collusive engineering and hostile administrative practices dismantle this trust, the court is reduced to a mere physical structure, stripped of its vital essence: justice itself.

Concluding Analysis

This study examines the conflict between seniority and meritocracy in judicial appointments in various jurisdictions, analyzing Nepal’s recent shift from seniority-based to merit-based appointments in a comparative context. In Nepal, the move towards merit-oriented appointments has sparked discussions on politicization and accountability, signaling a transition from procedural to outcome-focused notions of justice. India and Bangladesh face challenges of case backlogs and opaque appointment processes, where seniority and political influence often overshadow merit, compromising judicial independence and timely justice delivery. Sri Lanka also grapples with executive interference, with political factors frequently outweighing seniority and eroding public trust. In contrast, the United Kingdom and South Africa demonstrate how merit-based selection processes, supported by institutional mechanisms, enhance accountability and public confidence, despite concerns about diversity and politicization. These cases collectively highlight the trade-off between stability offered by seniority and the efficiency, accountability, and reform potential of merit-based approaches, emphasizing the importance of transparent, competency-driven criteria.

This government came into power under unique circumstances through elections, following the Gen Z movement and the collapse of the K. P. Oli-led administration. Balen took charge of the executive in a time when the prevailing principle was often “law for the poor and weak; privilege or comfort for the powerful.” The judicial system, from district courts to the Supreme Court, has consistently shown a bias towards protecting perpetrators while further victimizing those who have already suffered—a reality that we have directly observed.

This systemic inequality within the judiciary goes beyond procedural shortcomings; it is deeply ingrained in Nepal’s socio-cultural fabric. The institutionalized tendency of courts to shield offenders rather than provide justice to victims has severely damaged public trust. Without decisive reforms, this trend could lead to a long-term crisis for democratic values and constitutional freedoms.

We, the people of Nepal, have witnessed the challenges of judicial delays, which pose a significant obstacle to Nepal’s justice system. Timely justice and public trust in the judiciary are undermined by Nepalis. Victims of crimes are left in limbo, while perpetrators exploit procedural inefficiencies to evade accountability. This imbalance has created a perception of a judiciary that favors perpetrators, rather than those seeking justice. These trends raise concerns about the institutional design and ethical foundations of the courts, which remain unresolved. The debate between meritocracy and seniority in judicial appointments and promotions lies at the heart of this crisis. Proponents of meritocracy emphasize competence and integrity to ensure judicial progress and professional excellence for efficiency and fairness, while defenders of seniority prioritize experience and hierarchy. The ongoing judicial delays and the emergence of perpetrator-friendly tendencies call for a reassessment of this debate in the context of accountability, institutional reform, and democratic consolidation.

The decision made by the Constitutional Council in Nepal in 2026 to promote the fourth-ranked judge to chief justice, deviating from established seniority norms, marks a significant step towards merit-based judicial appointments. This decision, led by a reform-oriented government, prioritized performance over seniority to combat corruption and promote accountability, sparking a debate between traditional proceduralism and a focus on achieving results in the justice system. The research examines this shift, advocating for meritocracy as a way to enhance judicial effectiveness and address institutional inertia.

Political interference, executive overreach, socio-economic disparities, and institutional inefficiencies hinder the delivery of justice in Nepal. Despite having progressive constitutional frameworks, there are systemic delays, limited access for marginalized groups, and a decline in public trust. The oldest civil case in the Supreme Court was resolved on July 13. This case had been pending for 15 years, registered in the Supreme Court in 2009, and finally concluded in 2023 (Corporate Khabar, July 20, 2023). While justice should ideally be accessible to all, in reality, it often favors powerful political parties, influential leaders, and wealthy elites. Ordinary citizens face prolonged delays and unequal treatment, while the privileged receive expedited and preferential resolution of their cases.

This entrenched inequality highlights the impact of power, property, politics, and privilege on access to justice, rather than impartiality, fairness, transparency, and accountability. These distortions undermine judicial legitimacy, weaken democratic accountability, and erode constitutional freedoms. To address these challenges, significant reforms are necessary to restore impartiality, ensure equal access, and rebuild public trust in the judiciary as the ultimate guardian of rights, freedom, and justice for all.

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Professor Bishnu Pathak is a distinguished member of the Truth Alliance Global and former commissioner at Nepal’s Commission of Investigation on Enforced Disappeared Persons (CIEDP). He has been nominated multiple times (2014-2019) for the Nobel Peace Prize in recognition of his groundbreaking work on the peace-conflict lifecycle, a framework he likens to an ecosystem.  This lifecycle influences both academic discourse and practical peacebuilding efforts worldwide. With a Ph.D. in Conflict Transformation and Human Rights, Dr. Pathak brings over four decades of experience in peacebuilding, transitional justice, and human rights advocacy. Serving as a board member at the TRANSCEND Peace University, Dr. Pathak has authored 150 international papers and a dozen books that are widely referenced in over 100 countries. His publications cover a wide range of topics, including peace and conflict studies, human rights, human security, geopolitics, birthright equity, and transitional justice. For inquiries, collaborations, and/or speaking engagements, Dr. Pathak can be reached at prof.bishnu.pathak.np@gmail.com.

This article originally appeared on Transcend Media Service (TMS) on 18 May 2026.

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