The real story in Nepal’s Supreme Court debacle

The current questions about the separation of powers surrounding Chief Justice Cholendra SJB Rana and Prime Minister Sher Bahadur Deuba after the appointment (and subsequent resignation) of Rana’s brother-in-law Gajendra Hamal as a minister in government has raised serious questions about the conduct of justices, as well as interference in the judiciary by Nepal’s political leadership.

This seeming give-and-take between the PM and the CJ set off an outcry from within Nepal’s judicial community, political commentators and the mainstream media. The public also made its opinion known through charged discourse on social media.

Rana, for his part, swiftly refuted allegations that he had proposed Hamal’s ministership, as did a spokesperson for the prime minister when the issue was raised during a House session ahead of the cabinet expansion. Meanwhile, those in the Nepali Congress (NC) blamed the opposition UML for being behind “baseless rumours”.

But less than 48 hours since his appointment, Minister Hamal resigned, proving that the explanations of the PM and CJ did not hold water. Rana has subsequently faced growing calls for his resignation from former chief justices, current justices of the court, as well as the Nepal Bar Association and the Supreme Court Bar Association.

Justices and lawyers have been boycotting full court hearings called by Rana, as well as cases in the Supreme Court and other courts across Nepal since, affecting the judicial process.

The Nepal Bar Association issued an ultimatum to Chief Justice Rana to resign, and protests, as well as calls for his impeachment, have been escalating when he failed to meet the deadline set before the Tihar festival.

The controversy has exposed the transactional relationship between Nepal’s executive and judicial branches. However, what has been is that the nexus between political leadership and the Supreme Court existed long before the current debacle.

Political influence over the judiciary was seen when Chief Justice Khil Raj Regmi was appointed chairman of the council of ministers by the then CPN-Maoist government in March 2013, following the failure of Nepal’s Constituent Assembly to draft the Constitution after two term extensions.

Since then, it has become commonplace for politicians to interfere with the courts and judges through the Judicial Council, hand out positions to those deemed favourable, block unfavourable judicial appointments in Parliament hearings, engage in ‘bench buying’ in the Supreme Court, and even attempt to impeach the Chief Justice for failing to cater to their demands.

In fact, this is not the first time Deuba and Maoist leader Pushpa Kamal Dahal have tried to undermine the independence of the judiciary. In 2017, the NC-Maoist coalition government filed an impeachment motion against Chief Justice Sushila Karki, accusing her of interfering with executive decisions after she overturned the appointment of the Chief of Police.

It was actually Justice Cholendra Rana who issued an order against the impeachment motion, rejecting the interference over the judiciary by the executive branch. Rana also helped overturn K P Oli’s dissolution of Parliament in July which led to regime change and the five-party coalition under Deuba.

The irony is that the same figure who was once hailed as the protector of the sanctity of the judicial process is now being held responsible for encroaching upon the dignity of the judiciary and tarnishing the reputation of the Supreme Court.

By becoming an active collaborator in political and constitutional appointments, Chief Justice Rana has acted against judicial discipline, also contributing to eroding the principle of the separation of powers. The latest collusion between the PM and CJ has laid the precedent for unchecked political bargaining and the blurring of lines between the judicial and the executive branches.

In August, Deuba ended the Parliament session in the midst of a budget debate to issue the ordinance to amend the Political Parties Act that allowed his ally Madhav Kumar Nepal to break away from the UML, form a new party and join his coalition. A little more than a month later, he repealed the ordinance to make way for this cabinet expansion.

Issuing such an ordinance by suspending Parliament to benefit a particular person or party, and then repealing it once it had served its purpose, is a deliberate and cynical attack on the rule of law.

What happened with Gajendra Hamal is evidence that the current leadership is running the state like a private company to perpetuate its own power – not an institution that serves the Nepali people.

Deuba’s coalition has crushed the very foundation of our Constitution under the pretext of defending it. Prime Minister Deuba and Pushpa Kamal Dahal have found willing and enthusiastic co-conspirators in each other, using the judiciary to fulfil their individual agendas and destroying our democracy in the process.

It is becoming increasingly clear that one of the primary reasons why Deuba and Dahal have orchestrated this political theatre is to garner support from within the judiciary to avoid being held accountable for war crimes committed when both were leaders of opposing sides in the 1996-2006 insurgency.

Furthermore, the leadership is seeking to silence the international community on the matters of transitional justice by paving the way to clear their names of any involvement in further cases that might arise in court.

Indeed, Maoist leader and House Speaker Agni Sapkota faces a war crime charge in the Supreme Court. Both Sapkota and Rana are members of the Constitutional Council, and Sapkota stands to benefit in the courts through his association with the Chief Justice.

In 2018, the Maoist government rejected the nomination of Deepak Raj Joshi as chief justice in retaliation against his imprisonment order on Maoist cadre Chhabilal Poudel for the abduction and murder of Krishna Prasad Adhikari during the conflict in 2004. Adhikari, a resident of Fujel in Gorkha, had been accused by Maoists of spying on behalf of the state. Other judges involved in the case who ruled against the victim have all since been rewarded by the party.

The Maoist war ended 15 years ago and Nepal’s transitional justice process is stalled. Families of the 1,400 disappeared are waiting for the truth, victims of war crimes also want justice, and the thousands who were wounded, tortured, raped, or lost property during the conflict await compensation.

And while the Supreme Court verdict seven years ago to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act to prevent perpetrators of war crimes from being exempt from punishment has still not been carried out, the order to make Sher Bahadur Deuba the prime minister was implemented within 24 hours.

Such is the failure of the judicial system to stand for transitional justice, and the two erstwhile enemies, Deuba and Dahal, are among the primary players stalling the process.

Over the coming days, the Chief Justice may very well buckle under judicial and public pressure and resign. And while his exit is necessary to the preservation of the impartiality of the judiciary, the buck must not stop with him. The prime minister and other leaders of Nepal’s coalition are equally, if not more responsible for the dismantling of state mechanisms, and cannot be spared from consequences.

In particular, the Nepali Congress, the party once synonymous with democracy now seems hell bent on demolishing it, and must be held accountable. The prime minister blatantly used the judiciary to fulfil partisan interests, and must have to answer for it.

The judiciary is, without compromise, the foundation of a democratic system, and freedom, fairness and autonomy are its cornerstones. It is a source of great hope and is the last line of defense against the violation of individual freedoms and the constitutional rights of victims.

The hopes and trust of millions of Nepalis rest upon the judicial system. As such, the sustainability of an independent judiciary depends upon the competence, empathy, and sincerity of the leadership within all institutions of the branches of government.

The institution will crumble without public trust, and our democracy, achieved through the countless sacrifices by Nepali citizens over the years, will be reduced to just a showpiece on the mantle of Nepal’s history.

Charan Prasai is a human rights activist and coordinator of Accountability Watch Committee.

cprasai@gmail.com