<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

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The real story in Nepal’s Supreme Court debacle

<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

What is happening to Nepal’s Supreme Court?

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The real story in Nepal’s Supreme Court debacle

What is happening to Nepal’s Supreme Court?