<figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221114101124/637209619c7e80680e0b553ajpeg.jpg" alt="" width="890" height="500"/><figcaption></figcaption></figure>After a prolonged deadlock over Parliament’s ratification of a <a href="https://www.nepalitimes.com/opinion/to-be-or-not-to-be-on-the-mcc/" target="_blank" rel="noopener noreferrer">$500 million US-backed infrastructure project</a>, Nepal’s ruling parties have found a formula to keep their coalition intact, and approve the scheme.The controversial project was <a href="https://www.nepalitimes.com/latest/mcc-risks-split-in-nepals-ruling-coalition/" target="_blank" rel="noopener noreferrer">threatening to break</a> up the five-party coalition because Prime Minister Deuba’s Nepali Congress (NC) was for it, while the Maoist Centre and the CPN Unified Socialists were against it.The row had become embroiled in geopolitics with both Washington and <a href="https://www.nepalitimes.com/here-now/china-lobbying-against-mcc/" target="_blank" rel="noopener noreferrer">Beijing piling on pressure</a> on politicians in Kathmandu to ratify and scrap it. US Assistant Secretary of State Donald Lu had called Nepal's top leaders last week to warn of damage to relations if the compact was not ratified by the 28 February deadline.The MCC row was also <a href="https://www.nepalitimes.com/latest/the-deal-breaker/" target="_blank" rel="noopener noreferrer">complicating Nepal’s domestic politics</a> as the country faces local elections in May, with the Maoists and Unified Socialists wary of facing the ballot without an electoral alliance.On Sunday, 98 MPs belonging to the coalition filed an impeachment motion against <a href="https://www.nepalitimes.com/latest/what-is-happening-to-nepals-supreme-court/" target="_blank" rel="noopener noreferrer">Chief Justice Cholendra Shumsher Rana</a>, who has himself been caught up in a months-long standoff with Nepal’s lawyers over allegations of corruption and political interference.The Nepal Bar Association had been lobbying with coalition leaders to file an impeachment motion against Rana since November, but the politicians had been reluctant to do so. Rana was said to have the support of Prime Minister Deuba.Rana is automatically in suspension now, but he is unlikely to be impeached because that would need a two-thirds majority of the House that the coalition does not command.Rana was to adjudicate two pending writ petitions involving <a href="https://www.nepalitimes.com/latest/nepal-house-speaker-embroiled-in-mcc-row/" target="_blank" rel="noopener noreferrer">Parliament Speaker Agni Sapkota</a> of the Maoists on a war crimes charge, and on the suspension of 14 MPs that defected to the CPN Unified Socialists and whose the UML expelled.Rana was expected to rule against the Communist parties, while his successor, acting Chief Justice Deepak Karki is said to be more favourable to them.In a convoluted political way, suspending Rana opens the door to appease the Maoists and the Unified Socialists to allow the MCC project to be ratified when Parliament’s often postponed session sits on Wednesday.This is a win-win formula for the ruling coalition: Prime Minister Deuba gets to ratify the MCC, the Maoists save their Speaker, and Unified Socialists get to keep their 14 MPs. In addition Rana could have also ruled against former ministers who are now in the Unified Socialists in another case involving the Baluwatar real estate scam.However, the deal also exposes just how seriously the rule of law and separation of powers <a href="https://www.nepalitimes.com/latest/nepals-lawyers-on-warpath-against-chief-justice/" target="_blank" rel="noopener noreferrer">have become eroded in Nepal</a>, where political parties can use or discard Supreme Court justices to suit their interests.Even though the opposition UML was removed from power last year by Rana who annulled Prime Minister K P Oli’s dissolution of the House, it has been critical of the impeachment motion against him.The UML was hoping to break the coalition over its internal <a href="https://www.nepalitimes.com/latest/missing-links-in-nepals-mcc-debate/" target="_blank" rel="noopener noreferrer">disagreement over the MCC</a>, and gain an electoral advantage. It expected Rana to rule against Speaker Sapkota in a Supreme Court case to convict him for the killing of a UML supporter during the conflict. The UML was also hoping that Rana would expel the 14 UML rebels from House membership.The UML’s Subhas Nembang on Sunday criticised the impeachment motion as having been executed “guerrilla-style”, and its central secretariat held an emergency meeting on Sunday evening to plot future strategy.Despite the formula to save the coalition, Maoists and Unified Socialists have taken such a strong stance against <a href="https://www.nepalitimes.com/latest/mcc-damned-if-we-do-damned-if-we-dont/" target="_blank" rel="noopener noreferrer">the MCC</a> that they will find it difficult to support it now when the House sits on Wednesday.They may stay away, leaving the NC and UML to pass it so they can brandish their own nationalist credentials for having stood up against American 'imperialism' at election time.

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Chief Justice suspension linked to MCC ratification

<figure><img width="2400" height="1365" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/2022111016118/636d14489c7e80680e0a996djpeg.jpg" alt=""/><figcaption>Chiwan gears up for the 10th National General Convention of the CPN-UML on Friday. Photo: RSS</figcaption></figure>Nepal’s governance is once more grinding to halt as the two major parties, the Nepali Congress (NC) that leads the ruling coalition, and the opposition UML gear up for their general conventions.Such is the relentless focus on heated contest for influential posts within these parties that even the <a href="https://www.nepalitimes.com/opinion/the-real-story-in-nepals-supreme-court-debacle/" target="_blank" rel="noopener noreferrer">mutiny within the Supreme Court</a> against the Chief Justice has dropped off the headlines.  The conventions, during which Deuba and Oli will once again vie for top leadership positions within their respective parties, will take place even as the three branches of government are all tangled up. The UML conclave is being held in Chitwan this weekend, and the NC is holding its in mid-December in Kathmandu.The row over Chief Justice Cholendra SJB Rana has not only spot-lit the transactional relationship between the judiciary and executive, but also how the state is being held hostage by the internal power struggles within the main political parties.<a href="https://www.nepalitimes.com/latest/what-is-happening-to-nepals-supreme-court/">What is happening to Nepal’s Supreme Court?</a>, Santa Gaha MagarNepal’s current political turmoil came to a boil in December 2020 when Prime Minister KP Oli <a href="https://www.nepalitimes.com/latest/president-endorses-parliament-dissolution/" target="_blank" rel="noopener noreferrer">dissolved the House</a> in response to a months-long <a href="https://www.nepalitimes.com/latest/nepalis-outraged-by-pm-oli-move/" target="_blank" rel="noopener noreferrer">internal power struggle </a>between him and his Nepal Communist Party co-chair Pushpa Kamal Dahal. The PM’s move was unsuccessful, as the Supreme Court restored the House in February 2021.This ultimately led to the Supreme Court deciding that the NCP unification was null and void, thus driving Pushpa Kamal Dahal of the Maoists and UML dissenter Madhav Kumar Nepal <a href="https://www.nepalitimes.com/latest/nepal-sets-elections-in-middle-of-pandemic/" target="_blank" rel="noopener noreferrer">to ally with the opposition</a> led by the NC’s Sher Bahadur Deuba.  Oli dissolved parliament for a second time in May and the Supreme Court once more deemed it unconstitutional, even ordering that Deuba replace Oli as prime minister.Deuba began his<a href="https://www.nepalitimes.com/latest/deubas-long-and-winding-road/" target="_blank" rel="noopener noreferrer"> fifth term as prime minister</a> in July, leading a five-party coalition government by proroguing parliament and passing an <a href="https://www.nepalitimes.com/latest/old-wine-in-old-bottle-in-nepal-politics/" target="_blank" rel="noopener noreferrer">ordinance to amend the Political Parties Act</a> that made it easier for political parties to split.This was directly intended to allow his ally Madhav Nepal to break away from the UML and form his own party, so making it possible for him to team up with the coalition government and seek cabinet positions. Many saw the prime minister's move (something he and his own coalition partners had accused Oli of committing) as an undermining of the parliamentary process.<a href="https://www.nepalitimes.com/latest/nepals-post-breakup-politics/">Nepal’s post-breakup politics</a>, Santa Gaha MagarBut Deuba outdid Oli: after the ordinance had served its purpose and begun to become a burden during his much-delayed cabinet expansion, he got President Bidya Devi Bhandari to <a href="https://www.nepalitimes.com/latest/political-expediency-trumps-nepal-constitution/" target="_blank" rel="noopener noreferrer">repeal it</a>.  Deuba was bitterly criticised for running roughshod over the Constitution, but he was happy to form a full government. In the days leading up to the Cabinet expansion, news emerged that Chief Justice Rana wanted his nominees to also be given ministerships. The public, media and the legal fraternity was outraged by this blatant violation of the separation of powers.  <a href="https://www.nepalitimes.com/latest/nepal-govt-fills-cabinet-after-3-months/" target="_blank" rel="noopener noreferrer">Among Deuba’s cabinet picks</a> was Gajendra Bahadur Hamal for Minister of Industry, Commerce and Supplies, who just happened to be the brother-in-law of Chief Justice Rana and an NC member.Both Justice Rana, as well as Deuba’s camp, vehemently denied having negotiated for Cabinet positions, but the damage had been done. Hamal could not stand the heat and resigned three days later, leading many to conclude that there had indeed been a deal between the chief justice and the prime minister.As the judiciary erupted in protest, the Supreme Court stopped scheduled hearings. The Supreme Court Bar Association, the Nepal Bar Association, former Supreme Court justices <a href="https://www.nepalitimes.com/latest/nepals-lawyers-on-warpath-against-chief-justice/" target="_blank" rel="noopener noreferrer">called for boycotts</a> demanding the resignation of Chief Justice Rana.Rana has refused to step down, saying he would rather face an impeachment motion in the House, knowing fully well that the politicians did not have the stomach for it because of their own pending cases. A compromise of sorts was reached this week under which cases in the Supreme Court will be decided by a tamper-proof lottery-based cause list.<a href="https://www.nepalitimes.com/banner/non-government-of-nepal/">Non-government of Nepal</a>, Sonia AwaleNow, as the two major parties hold their general conventions as required by law, there are doubts about whether they serve any purpose when power is so centralised at the top leadership of parties even with federal devolution.“The Nepali Congress and the UML were revolutionary political parties formed after the democratic movement 30 years ago, they were expected to bring about great socio-economic transformation,” says political science professor Krishna Khanal. “But they face a great crisis, they are in a trap of their own making.”Khanal notes that the greatest challenges for Nepal’s political parties are not constitutional matters or public opinion and discourse, but conflicting ambitions within individual parties that could make them implode, as parties have done in the past.“There is no internal democracy within Nepal’s political parties,” laments Radheshyam Adhikari himself an NC MP. “The  Constitution stipulates that political parties must hold internal elections every five years, which Nepal’s major political parties have failed to do. They have therefore lost their public legitimacy.”Khanal and Adhikari agree that political parties have just become a collective of selfish people seeking to grab power for their own self-interest. The current political climate also brings into question the leadership of Nepal’s ageing political figures, and the need for a younger generation to step up to the stage.“Nepal’s political parties are a stagnant swamp, not a constantly flowing river,” Khanal says. “The same leaders from three decades ago are still holding and vying for power instead of passing the baton to a new generation of leaders who came post-2006.”Meanwhile, Nepalis are now so disillusioned with the current state of politics that they do not just blame the politicians, but to flaws in the Constitution and even the very concept of a secular multi-party federal state.  However, former law minister and ambassador to India Nilamber Acharya says the current state is not due to the Constitution, but the flagrant violation of its principles.<a href="https://www.nepalitimes.com/latest/india-nepal-ties-must-move-beyond-1950-treaty/">“India-Nepal ties must move beyond 1950 treaty”</a>, Nepali Times“The current political disarray is not due to republicanism or federalism, but due to the inability of elected leaders to bring those concepts into practice,” Acharya says. “The responsibility of preserving the democratic process and strengthening the republic lies primarily with the Nepali Congress and the UML.”  He adds, “The flaw lies not in democracy, but in the fact that we do not have a functioning democratic process. The multi-party system is not responsible, the deep factionalism within the parties, and the inability of leaders to work together for the national interest.”

Shristi Karki

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Unconventional party conventions

<figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/2022111016110/636d121a9c7e80680e0a98bbjpeg.jpg" alt="" width="890" height="500"/><figcaption></figcaption></figure>The current questions about the separation of powers surrounding Chief Justice Cholendra SJB Rana and Prime Minister Sher Bahadur Deuba after <a href="https://www.nepalitimes.com/latest/nepal-govt-fills-cabinet-after-3-months/" target="_blank" rel="noopener noreferrer">the appointment</a> (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 <a href="https://www.nepalitimes.com/latest/nepals-lawyers-on-warpath-against-chief-justice/" target="_blank" rel="noopener noreferrer">calls for his resignation</a> 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 <a href="https://www.nepalitimes.com/latest/what-is-happening-to-nepals-supreme-court/" target="_blank" rel="noopener noreferrer">the Supreme Court</a> 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 <a href="https://archive.nepalitimes.com/article/interview/a-woman-is-as-capable-sushila-karki,3375" target="_blank" rel="noopener noreferrer">Sushila Karki</a>, 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 <a href="http://archive.nepalitimes.com/blogs/thebrief/2017/05/05/sc-stays-impeachment/" target="_blank" rel="noopener noreferrer">the impeachment motion</a>, 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, <a href="https://www.nepalitimes.com/latest/political-expediency-trumps-nepal-constitution/" target="_blank" rel="noopener noreferrer">he repealed the ordinance</a> 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 <a href="http://archive.nepalitimes.com/regular-columns/guest-editorial/justice-delayed-justice-denied-transitional-justice,849" target="_blank" rel="noopener noreferrer">matters of transitional justice</a> by paving the way to clear their names of any involvement in further cases that might arise in court.Indeed, Maoist leader and <a href="https://www.nepalitimes.com/latest/speechless/" target="_blank" rel="noopener noreferrer">House Speaker Agni Sapkota faces a war crime charge</a> 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 <a href="https://www.nepalitimes.com/latest/nepal-runs-out-of-excuses-to-address-war-crimes/" target="_blank" rel="noopener noreferrer">Nepal’s transitional justice process is stalled</a>. 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

The real story in Nepal’s Supreme Court debacle

<img width="800" height="506" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221110161132/636d1a0e9c7e80680e0ac851jpeg.jpg" alt=""/>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.<blockquote>नेपाल बार अगाडि वकिलबीच कुटाकुट प्रधानन्यायाधीश चोलेन्द्र शमशेर जबराका समर्थक र विरोधी वकिलबीच शुक्रबार नेपाल बारभित्रै कुटाकुट भएको हो। <a href="https://t.co/lCX8qdJBNJ">pic.twitter.com/lCX8qdJBNJ</a>— Setopati (@setopati) <a href="https://twitter.com/setopati/status/1453995371030454272?ref_src=twsrc%5Etfw">October 29, 2021</a></blockquote> Video: SETOPATI/TWITTER<a href="https://www.nepalitimes.com/latest/what-is-happening-to-nepals-supreme-court/">What is happening to Nepal's Supreme Court?</a>, Santa Gaha MagarThe 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<a href="https://www.nepalitimes.com/here-now/supreme-court-puts-nepal-politics-back-on-track/" target="_blank" rel="noopener noreferrer"> separation of powers</a>.Public and judicial outcry ensued after news emerged that the Chief Justice had <a href="https://www.nepalitimes.com/latest/what-is-delaying-nepal-cabinet-expansion/" target="_blank" rel="noopener noreferrer">demanded ministerial appointments</a> 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 <a href="https://www.nepalitimes.com/opinion/quid-pro-quo/" target="_blank" rel="noopener noreferrer">scratching each others’ backs</a>.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 <a href="https://www.nepalitimes.com/latest/nepal-supreme-court-restores-house/" target="_blank" rel="noopener noreferrer">dissolution of the House</a> was unconstitutional, is also opposed to impeachment — saying that five other judges who passed that verdict should also resign.<a style="font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/latest/old-wine-in-old-bottle-in-nepal-politics/" target="_blank" rel="noopener noreferrer">Old wine in old bottle in Nepal's politics</a>, Shristi KarkiFor 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, <a href="https://www.nepalitimes.com/latest/nepal-govt-fills-cabinet-after-3-months/" target="_blank" rel="noopener noreferrer">Deuba and his coalition partners</a> 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.<a style="font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/latest/nepals-post-breakup-politics/" target="_blank" rel="noopener noreferrer">Nepal's post-breakup politics</a>, Santa Gaha MagarMany 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, <a href="http://archive.nepalitimes.com/blogs/thebrief/2013/03/14/regmi-sworn-in-2/" target="_blank" rel="noopener noreferrer">appointed Khil Raj Regmi</a>,  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 <a href="http://archive.nepalitimes.com/blogs/thebrief/2014/02/11/khil-raj-regmi-resigns-as-cj/" target="_blank" rel="noopener noreferrer">resigned after the elections in February 2014</a>.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<a href="http://archive.nepalitimes.com/blogs/thebrief/2017/05/01/lady-justice/" target="_blank" rel="noopener noreferrer"> impeachment motion </a>was filed against <a href="https://archive.nepalitimes.com/article/interview/a-woman-is-as-capable-sushila-karki,3375" target="_blank" rel="noopener noreferrer">Chief Justice Sushila Karki</a> 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 <a href="http://archive.nepalitimes.com/article/from-nepali-press/I-will-not-spare-the-corrupt,3156" target="_blank" rel="noopener noreferrer">aggressive stance on corruption</a>.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.Read also: <a href="https://www.nepalitimes.com/banner/non-government-of-nepal/">Non-government of Nepal</a>, Sonia Awale

Nepal’s lawyers on warpath against Chief Justice

<figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221110161132/636d19aa9c7e80680e0ac831jpeg.jpg" alt="" width="640" height="699"/><figcaption>Illustration: Bhanu Bhattarai/Nepali Times Archive</figcaption></figure>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 <a href="https://www.nepalitimes.com/latest/nepal-govt-fills-cabinet-after-3-months/">coalition Cabinet of Prime Minister Sher Bahadur Deuba</a>.It was the Supreme Court’s verdict overturning the dissolution of the Lower House by previous prime minister K P Oli that <a href="https://www.nepalitimes.com/here-now/nepal-court-orders-deuba-to-succeed-oli/" target="_blank" rel="noopener noreferrer">put Deuba in office</a> 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 <a href="https://www.nepalitimes.com/latest/100-days/" target="_blank" rel="noopener noreferrer">accept his own relative as minister</a>, 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 <a href="https://www.nepalitimes.com/latest/who-wants-early-elections-and-why/" target="_blank" rel="noopener noreferrer">top leadership</a> 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 <a href="https://archive.nepalitimes.com/article/editorial/fusion-of-powers,3760" target="_blank" rel="noopener noreferrer">political interference in the judiciary</a>, 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.<a href="https://www.nepalitimes.com/banner/non-government-of-nepal/">Non-government of Nepal</a>, Sonia AwaleWith 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 <a href="https://www.nepalitimes.com/here-now/supreme-court-puts-nepal-politics-back-on-track/" target="_blank" rel="noopener noreferrer">saving democracy twice this year</a> 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, <a href="http://archive.nepalitimes.com/blogs/thebrief/2017/05/01/lady-justice/" target="_blank" rel="noopener noreferrer">faced an impeachment motion </a>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 <a href="https://www.nepalitimes.com/opinion/quid-pro-quo/" target="_blank" rel="noopener noreferrer">scratching each others’ backs</a> 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 <a href="https://www.nepalitimes.com/latest/nepal-govt-fills-cabinet-after-3-months/" target="_blank" rel="noopener noreferrer">separation of powers</a>. 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:<a href="https://www.nepalitimes.com/latest/political-expediency-trumps-nepal-constitution/">Political expediency trumps Nepal Constitution,</a> Santa Gaha Magar

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