What is happening to Nepal’s Supreme Court?

Illustration: Bhanu Bhattarai/Nepali Times Archive

Even though Nepal’s executive, legislative and bureaucratic arms suffer from over-politicisation, the judiciary and military have been relatively less affected. The current crisis in the Supreme Court has politicised the justice system and also dragged it into dysfunction.

The Supreme Court has not held scheduled hearings, and courts across the country have been shut for three days after justices of the Supreme Court and the Nepal Bar Association called for boycotts demanding the resignation of Chief Justice Cholendra SJB Rana.

Rana has more than a year left in his tenure, but has been embroiled in controversy after he allegedly lobbied for ministerial posts for a relative and crony in the coalition Cabinet of Prime Minister Sher Bahadur Deuba.

It was the Supreme Court’s verdict overturning the dissolution of the Lower House by previous prime minister K P Oli that put Deuba in office on 14 July, heading a five-party coalition. Deuba himself is also implicated in the scandal after he agreed to make Rana’s brother-in-law Gajendra Hamal a minister earlier this month. Hamal resigned three days later.

Even though party leaders have in the past two decades often bent Nepal’s Supreme Court to suit their interests, by pressuring the prime minister to accept his own relative as minister, Rana is seen to have crossed the red line and violated the doctrine of the separation of powers.

Rana summoned other justices and lawyers on Tuesday and said that under no circumstances was he going to step down, and that he would rather face an impeachment motion in the House.

However, there has been an intriguing silence from the top leadership of the main parties about the fate of Chief Justice Rana. They seem to wish the problem will just go away, or Rana voluntarily resigns, so they do not have to take a stand.

They do not want to annoy Rana because of the need to bargain over their own pending cases in the Supreme Court, but there is now intense pressure from the legal fraternity and the public to impeach him.

Prime Minister Deuba of the Nepali Congress (NC) has not spoken in favour of impeachment, but is under pressure to do so from a rival faction within his own party. And even though it was Rana’s Supreme Court verdict that removed him from power in July, the UML’s K P Oli is against impeachment — saying that if Rana were to step down, five other justices who ruled against him should also resign.

Others like Madhav Kumar Nepal of the United Socialists and Baburam Bhattarai of the Janata Samajbadi Party have cases pending in the Supreme Court in a real estate scam, and the Maoist Centre (MC) parliament speaker Agni Sapkota also has a war crime case against him.

However, some have argued that the real issue here is separation of powers and stopping political interference in the judiciary, and the Supreme Court having to step in to resolve political deadlocks in the executive and legislative branches.

By taking their disputes to the Supreme Court as arbiter of last resort, Nepal’s leaders have handed over crucial political decisions to the Chief Justice and his benches. So much so that the apex court has been deciding who forms a government and who doesn’t — an issue that should be resolved by party strength in Parliament.

The only way to remove Rana would be if he is forced to resign, or if 25% of the House move an impeachment motion against him, although it will take a two-thirds majority to actually indict him.

Non-government of Nepal, Sonia Awale

With so much politics, corruption and vested interested tied up with the political appointment of justices, there are some who question whether just removing Chief Justice Rana will solve the problem, because the rot goes much deeper.

Even if Rana is forced to resign or is impeached, he will be replaced by Dipak Kumar Karki. Those who would benefit from Karki’s elevation to Chief Justice can be seen to be pulling strings from behind the scenes, and suspicions have fallen on the Maoist Centre’s Pushpa Kamal Dahal who is said to be close to Karki. Dahal appears to be trying to do with Karki what he tried to do to with appointing Kul Bahadur Khadka as army chief in 2009.

The irony is that the same NC, MC, and dissident UML members that praised Chief Justice Rana for saving democracy twice this year by his constitutional bench verdicts to restore the dissolved House, are now labelling Rana a villain. Oli’s UML criticised the Supreme Court heavily for that.

The Maoists also vehemently opposed a Supreme Court decision in February to nullify the unity of the UML and Maoists to form the NCP, that Oli had welcomed.

What all this shows is that politicians and their parties are wont to praise to high heavens justices when there is a decision in their favour, but berate the Supreme Court when it goes against their interest. That is what appears to be happening again: some parties want Rana to remain, while others want him to go.

The only difference this time is that the anti-Rana forces in the judiciary, Bar and the government feel he went too far by allegedly lobbying for relatives and cronies to be included in the Cabinet. Even if he did talk the prime minister into agreeing to make his brother-in-law a minister, Deuba should have rejected it outright as interference.

Instead, Deuba and Dahal both clarified that Hamal had been made minister from the NC quota and did not say anything about pressure from the chief justice. Why were Deuba and his coalition partners so eager to make Hamal a minister?  Was it because they wanted to keep Chief Just Rana in the good books to extract their pounds of flesh in future verdicts in cases involving them?

Cholendra SJB Rana is Nepal’s 29th chief justice, but not the first to be embroiled in controversy. Even Sushila Karki, known for her firebrand independence, faced an impeachment motion by a NC-Maoist coalition government in 2017 because she did not agree to pass verdicts that favoured them on the appointment of a police chief.

In fact it was Rana who trashed  that impeachment motion against Karki, saying it went against the spirit of the Constitution to file a the motion against the chief justice on such partisan grounds.

There is a lot of politics tied up with whether Rana remains chief justice or is forced to step down. On 1 November, the Supreme Court is due to hear a case against Madhav Kumar Nepal and Baburam Bhattarai on the Baluwatar real estate scandal. Some see the magnified criticism of Rana as a way to put pressure on him to rule in their favour.

It is clear that Rana’s departure will not be enough to herald a golden age of justice in Nepal. The same forces in the executive and judiciary that were scratching each others’ backs will still be up to their old tricks. Rana is not coming out of this smelling like roses, but neither are many of the other justices who want him to resign, nor the politicians who benefited from their appointments.

It is now important that the political parties and justices who are at the root of this crisis vow not to violate the constitutionally-enshrined separation of powers. This should not be about using Chief Justice Rana as a bargaining chip, but an opportunity to conduct far-reaching reforms within the judiciary.

The boycott by lawyers and judges on Thursday affected hearings across the country and delayed justice being served. Urgent cases like those of habeas corpus have been left in limbo.

Says ex-justice Prakash Wasti: “The ball is in the court of the Nepal’s politicians, whether to make the courts a place where justice is served, or where they serve themselves.”

Read also:Political expediency trumps Nepal Constitution, Santa Gaha Magar

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