The euphoria of March elections seems like a distant past for the ruling RSP, as the government that is barely over its ‘honeymoon period’ is staring at a political nightmare. A string of exposés involving fixers, judges, police officials, political intermediaries and leaked evidence threatens to spill into a wider institutional crisis. The temptation is obvious: move quickly, make arrests and demonstrate that the new government will not tolerate old ways. However, the controversy has now struck home, with the name of Prime Minister’s political adviser Kumar Byanjankar (Ben) reportedly under scrutiny over the alleged withholding of Inam Sapkota’s phone—an important piece of forensic evidence—from police for approximately 48 hours. That alone is a criminal offence which, if proved, could tarnish the reputation of Prime Minister Balendra Shah, who has maintained a clean image, despite his controversial and unorthodox governing style. 

It is likely that the government would want to centre its investigation around Sapkota and his connection with former chief justice Cholendra Shumsher Rana. But there is a risk in fighting political malfeasance of this scale through a piecemeal approach, targeting individuals instead of the institution that bred them. If evidence relevant to an ongoing investigation was kept from investigators for nearly two days, the question is no longer only whether individuals in the judiciary, police or political networks were compromised. It is also whether those at the highest levels of the executive may have interfered with, or obstructed, the process of establishing the facts. 

The RSP leadership cannot treat this as an investigation into the conduct of others while insulating its own government from scrutiny. It must treat media-reported allegations against the Prime Minister’s adviser with the same seriousness it applies to every other allegation.

Investigate the system, not an individual

When the integrity of not a single judge, but the top leadership across several state institutions comes under public scrutiny, it is not an individual problem but a systemic one. Supreme Court Judge Hari Phuyal was not popular with the Prime Minister’s Office, especially after he and a few other senior judges publicly expressed their disapproval regarding the appointment of the current Chief Justice Manoj Sharma. There were a number of media reports about the government planning to go after the judiciary. Phuyal’s interaction and meeting with Sapkota focused on specific ongoing cases, but in his statement before the full court, he also drew attention to the larger context of the meeting. 

The rule of law mandates a probe against a wrongdoer, and Phuyal must certainly be investigated; however, despite a media trial, he must be considered innocent until proven otherwise. Article 153 of Nepal’s constitution is clear: any issue regarding the (mis)conduct of a sitting judge falls within the jurisdiction of the Judicial Council. Therefore, it is appropriate that the relevant evidence from the ongoing inquiry into the arrest of Inam Sapkota also be forwarded to the Judicial Council, which can then initiate its own internal inquiry. 

Even if there is sufficient evidence against Phuyal and former CJ Rana, the government or the ruling party cannot and must not initiate unilateral action against a sitting judge or a former Chief Justice. Taking any action against a sitting judge or even a retired one is not merely a legal process; it is as much a political act that can put two organs of the state at loggerheads. From this perspective, the principle of separation of powers ingrained in Nepali democracy hinges on fine political judgement. 

RSP Chairman and parliamentary leader Rabi Lamichhane must have an uncomfortable conversation with Prime Minister Balendra Shah and the Speaker Dor Prasad Aryal, requesting the latter for a special parliamentary session to discuss the issue. It is appropriate that Lamichhane also reaches out to the opposition leaders to collectively propose a special task force comprising retired Supreme Court judges, senior advocates and parliamentarians from both ruling and the opposition parties, to initiate a time-bound inquiry and make its recommendation to the house. 

The parliament must be cognizant of the fact that any credible inquiry into the judiciary and its reform agendas cannot exclude the legal community, its primary stakeholders. At the same time, the inquiry should extend beyond the judiciary to the full chain of events that includes: alleged handling of Sapkota’s phone, why it was reportedly withheld from police, who authorised or knew of the delay, and whether any attempt to tamper with the evidence occurred that could influence the investigation. No office, adviser or party functionary should be beyond its reach.

Fixing the leak

Following a due constitutional and political process would be less dramatic than a midnight raid and will not feed the algorithm. But it is the right thing to do, if we still can call ourselves a functioning democracy. Remember, if judges can be threatened with removal because their names appear in leaked media reports or because of a lapse in personal judgement, it will set a dangerous precedent. Besides, the parliament should not be oblivious to the possibility that not everyone caught in a fixer network is necessarily a guilty participant. The objective should be to get the compromised out of positions of authority and uncover the networks behind them. Only then can there be a real possibility of an institutional reform in the judiciary.

The ruling party can spend its parliamentary majority hunting individuals. Or, it can work with the opposition to make it a bipartisan agenda, using the current crisis as an opportunity to initiate a serious reform within the judiciary.  

The practice over the past decades has confirmed the latter tendency.  The recent judicial appointments, including that of the current Chief Justice, are only the latest in this trend. 

The same logic should have been applied to the police. If allegations involving Inspector General Dan Bahadur Karki could have been substantiated and his conduct was found to have compromised national security or institutional integrity, he should have been suspended and investigated through an appropriate state mechanism. He should not have been simply removed through a political directive. 

Nepal has spent decades discovering that institutions are weakened the most by those trying hard to save them. We have seen our share of regimes and governments that promised to weed out corruption, while happily abusing the power, capturing state institutions and curbing civic space. 

On the face of it, Inam Sapkota only seems to be an unsuspecting face of the deeper institutional malaise. The RSP was elected in large part because voters were aware of this malaise but had nowhere to turn to clean it up. It should therefore resist the easiest political temptation available to it. They should demonstrate that governance works better when the power is constrained. For the party that loves to talk about a departure from the past politics, investigating possible wrongdoings within its own government would be the one worth pursuing.