Nepal’s lawyers on warpath against Chief Justice

Even though Nepal’s political parties do not seem very keen for the moment to impeach controversial Chief Justice Cholendra SJB Rana, the mutiny against him is spreading among justices and lawyers.

Chief Justice Rana’s alleged pressure on Prime Minister Sher Bahadur Deuba to make his brother-in-law a minister earlier this month and other purported misdemeanours have halted proceedings in the Supreme Court as judges and lawyers go on the warpath.

Things have got so volatile that on Friday lawyers for and against Rana had a fistfight outside the Nepal Bar Association as it was announcing an intensified agitation against the chief justice. A video clip of the scuffle went viral on Nepal’s social media.

नेपाल बार अगाडि वकिलबीच कुटाकुट
प्रधानन्यायाधीश चोलेन्द्र शमशेर जबराका समर्थक र विरोधी वकिलबीच शुक्रबार नेपाल बारभित्रै कुटाकुट भएको हो। pic.twitter.com/lCX8qdJBNJ

— Setopati (@setopati) October 29, 2021

Video: SETOPATI/TWITTER

What is happening to Nepal's Supreme Court?, Santa Gaha Magar

The row over the chief justice has cast a spotlight on the transactional relationship between Nepal’s executive and judicial branches, and deliberate and blatant attempts by the political leadership and the chief justice to violate the principle of separation of powers.

Public and judicial outcry ensued after news emerged that the Chief Justice had demanded ministerial appointments for two of his people as the coalition government was deliberating a much-delayed Cabinet expansion earlier this month.

Deuba agreed to one cabinet position, appointing Rana’s brother-in-law Gajendra Hamal as the Industry, Commerce and Supplies Minister.
Deuba and Rana both refuted allegations of bargaining, but not very convincingly. Even Deuba’s own party members said appointing Hamal was wrong.

As the outrage spread, Hamal resigned less than 48 hours into his ministership, but this only added fuel to the fire as many saw it as an admission of the chief justice and the prime minister scratching each others’ backs.

To be sure, other members of the ruling five-party coalition have not shown much interest in registering an impeachment motion in Parliament against Rana. In fact, Parliament was conveniently prorogued on Friday, citing the opposition UML’s disruptions of proceedings. The UML’s K P Oli, who had to step down as prime minister after the Supreme Court ruled in July that his dissolution of the House was unconstitutional, is also opposed to impeachment — saying that five other judges who passed that verdict should also resign.

Old wine in old bottle in Nepal's politics, Shristi Karki

For the past week, justices and lawyers have been boycotting full court meetings called by Rana, as well as cases in the Supreme Court and other courts across Nepal, bringing the judicial process to a standstill. As it is, only the Chief Justice-led single bench has been conducting hearings at Nepal’s top court.

On Friday, the Nepal Bar Association issued an ultimatum to Chief Justice Rana to resign by 3 November, otherwise, it would undertake escalating protests including further boycotts of hearings, preventing Rana from entering the Supreme Court premises and even street rallies.

On Thursday, Rana repeated in an interview with BBC Nepali that he would not step down just because some justices were calling for it. “I was appointed through a constitutional process, and I can only be removed through a constitutional process,” said Rana, possible convinced that the political parties would not move to impeach him.

However, second-tier leaders of the Nepali Congress on Friday issued a statement calling on their party to protect judicial independence, the rule of law and separation of powers. ‘The Nepali Congress cannot remain silent in the controversy involving the chief justice when there is so much opposition to him from within the Supreme Court and the legal system,’ the statement by 12 NC members including Gagan Thapa, Sarita Prasai, and Dhanaraj Gurung said.

And as Chief Justices, current justices on the court, as well as the Nepal Bar Association and the Supreme Court Bar Association called on the Chief Justice to step down, Deuba and his coalition partners have stayed silent on the matter, privately hoping that Rana will resign and take the decision out of their hands.

Rana, who was appointed Nepal’s top judge by the KP Oli government in 2019, has remained steadfast in his refusal to resign unless the four other justices of the five-member bench that reinstated the parliament dissolved by Oli and appointed Deuba Prime Minister resigned along with him. The four other justices are Deepak Karki, Mira Khadka, Ishwor Khatiwada, and Ananda Mohan Bhattarai.

Instead, Rana has said that he is ready to face the constitutional process, daring the coalition to file an impeachment motion.

Every politician and party has a reason not to anger Chief Justice Rana at present. A hearing against Madhav Kumar Nepal and Baburam Bhattarai for their alleged involvement in the Lalita Niwas land ownership case is due on 1 November.

Similarly, K P Oli has also filed a writ petition in the Supreme Court against Speaker Agni Sapkota over his refusal to expel then-UML lawmakers as well as against the Election Commission over Madhav Kumar Nepal’s registration of his new party. Sapkota, who is a Maoist, himself also has a war crime case against him pending in court.

Nepal's post-breakup politics, Santa Gaha Magar

Many see Nepal’s recent political and judicial developments as the beginning of the end of the separation of powers within Nepal’s branches of government.

In March 2013, following its failure to draft the Constitution after two-term extensions, Nepal’s Constitutional Assembly was dissolved. Subsequently, Nepal’s political parties, seeking a ‘neutral party’ to oversee the next CA elections, appointed Khil Raj Regmi,  who was then Nepal’s Chief Justice, as the chairman of the council of ministers. Regmi led a caretaker government and presided over the 2013 elections, and resigned after the elections in February 2014.

In hindsight, this was a watershed moment for the erosion of the separation of powers within Nepal’s executive and judicial branches.

In 2017, an impeachment motion was filed against Chief Justice Sushila Karki by the coalition government of the NC and the Maoists, who accused her of interfering with executive decisions after Justice Karki overturned the government’s choice for Nepal’s Chief of Police.

Expert and public consensus at the time was that the impeachment served to intimidate the judiciary and Karki, who was noted for her integrity, independence and aggressive stance on corruption.

Karki was reinstated after the single bench of Justice Rana issued an order against the impeachment motion.

Rana’s tenure has not been without controversy, with the Chief Justice having come under scrutiny for reducing sentences of convicted murderers, acquitting individuals charged with corruption and manipulating favourable benches as favours to businessmen and politicians.

Indeed, the controversy has also brought to light the practice of ‘bench buying’ in the Supreme Court, which Rana has been accused of facilitating. The decision on which cases have which benches assigned is so rife with corruption that bench-selection has become a money-making scam.

An independent judiciary is the foundation of a functioning democracy and ensures that the branches of government operate within a system of checks and balances. But the controversy surrounding the Chief Justice, much more blatant than previous misgivings from within Nepal’s judiciary, has exposed the long-standing quid pro quo relationship between Nepal’s executive and judicial branches.

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