Judiciary in the dock as justices come into questionNever in the past has the Supreme Court faced a crisis of such immense proportions where it has to fight to justify the composition of a bench.
Ever since the Constitutional Bench started hearing petitions against Prime Minister KP Sharma Oli’s move of dissolving the House of Representatives, the petitioners’ lawyers and justices have been making arguments and counterarguments over the composition of the bench.
On Friday, questions were raised about the presence of Justice Bam Kumar Shrestha on the bench. On Sunday, lawyers said even Chief Justice Cholendra Shumsher Rana’s presence raises questions about the bench’s impartiality.
Rana, as the chief justice, leads the bench as per a constitutional provision, and he is the one who picks four other members.
On Sunday, lawyers also said Justice Tej Bahadur KC also should be removed from the bench, as he was a member of Rana’s bench that quashed a review petition filed by the Communist Party of Nepal (Maoist Centre) chair Pushpa Kamal Dahal.
Lawyers have various arguments to make against the three judges’ presence in the bench. Rana, however, told the advocates that they cannot dictate who all should be named as members for the bench and that everyone must trust the justices.
The ongoing debate over the composition of the Constitutional Bench has drawn the judiciary into controversy, with many saying the Supreme Court had never faced a crisis of such proportions as its independence has been called into question.
Daman Nath Dhungana, a former Speaker, says the judiciary has a wonderful opportunity to prove now it continues to be an independent institution on which people can have full faith without an iota of doubt.
Nepal’s judiciary has by and large maintained its dignity and sanctity. Even during the monarchy, the judiciary rarely faced charges of bending under the influence of the palace.
Its independence once in a while, however, has come under scrutiny because politicians’ tried to appoint “people close to them” as justices. In 2017, a set of newly appointed judges had been to the CPN-UML headquarters in Balkhu to “express their gratitude” to politicians.
The way justices were being appointed at the Supreme Court based on political parties’ recommendations had many wondering if the Supreme Court was losing its credentials, but the judiciary managed to survive unscathed, dispelling the doubts.
But suspicions now have emerged once again. Doubts over the judiciary, however, started when Oli dissolved the House for the first time in December.
A large section doubted if Oli had already taken the judiciary into confidence so as to get a verdict in his favour. When on February 23, the court overturned Oli’s House dissolution, it earned applause for upholding the constitution and maininating its independence.
A dramatic decision by the court after two weeks on March 7, however, created more political turmoil, as a division bench invalidated the Nepal Communist Party (NCP) and revived the UML and the Communist Party of Nepal (Maoist Centre).
Shrestha was one of the two justices of that division bench. Kumar Regmi was the other justice.
On March 30, Maoist chair Pushpa Kamal Dahal filed a petition demanding a review of the March 7 decision of the Supreme Court to invalidate Nepal Communist Party (NCP) and revive the CPN-UML and the Maoist Centre in their pre-merger states. A bench comprising Chief Justice Rana, Tej Bahadur KC and Prakash Kumar Dhungana, rejected the petition.
Now lawyers are saying the presence of the justices who were in the recent past part of a series of decisions that are linked with current House dissolution constitutes a serious conflict of interest.
Experts and analysts say the judiciary coming under the scanner over the composition of a bench and the justices’ past decisions is unfortunate and that it also shows that the Supreme Court needs to introspect and review itself.
Bhojraj Pokharel, a former chief election commissioner and a lobbyist for good governance, said the recent incidents show the judiciary needs an immediate comprehensive review.
“It’s natural for the people to expect the country’s top court to perform independently, without coming under influence of the government, any group or a party,” said Pokharel. “There is frustration among the people, largely caused by politicians, and the questions being asked against the judiciary also is an extension of that.”
Nepal’s fledgling republic continues to remain vulnerable even after more than a decade. Analysts say the problem is largely due to the politicians' failure to strengthen institutions. For a democracy to flourish, institutions need to be strong. But over the years, institutions have been attacked and constitutional bodies, which are supposed to hold the government to account, have become avenues for politicians to install people close to them.
Oli, however, cannot be blamed solely, as successive governments led by various politicians have done the same. And most of the time, politicians from across the political spectrum have done so in collusion, something which is famously called in Nepal “bhaag banda”–or dividing the spoils among the parties.
Analysts, however, are now blaming Oli for drawing the judiciary into controversy, largely because of the chain of events he set in motion by making unconstitutional moves one after another.
Former justices now fear if the judiciary, the last bastion of democracy, is being compromised.
Former chief justice Anup Raj Sharma said the authorities of the Supreme Court are to be blamed for where the judiciary has arrived today.
“The judiciary and its leaders need not only act in an independent way; their every action must be seen as independent,” said Sharma. “The current case the Supreme Court’s Constitutional Bench examining is also going to determine–and renew–people’s faith in the judiciary.”
Even after three days’ of hearing, the Constitutional Bench has not been able to get into the core issue.
After lawyers pleading on behalf of the petitioners–one of them is a group of 146 politicians belonging to different parties and factions–refused to budge from their stance that the composition of the bench needs to be changed, the justices decided to hold a meeting on Monday, by calling off Sunday's hearing.
The bench informed that a decision on the composition of the bench would be taken on Monday. Despite several rounds of discussions, they have failed to take any decision though.
“Discussions were also held among the justices if the members should be reshuffled if the two justices in question [Shrestha and KC] refuse to recuse themselves,” said a source at the Supreme Court.
Besides Rana, Shrestha and KC, the other two justices on the bench are Deepak Kumar Karki and Ananda Mohan Bhattarai.
KC was a member of the Rana-led Constitutional Bench last time also when it heard the petition against the December 20 House dissolution. After questions were raised against Hari Krishna Karki, he had decided to recuse himself, and Sapana Pradhan Malla was brought in.
Many say the situation is now becoming very critical, as what happens if questions are raised against the new composition.
Balaram KC, a former Supreme Court justice, said the chief justice needs to take the lead to end the current discussion so as to facilitate hearings.
But whether Chief Justice Rana can recuse himself from hearing would give rise to some more constitutional questions, as the constitution says “the chief justice shall lead the constitutional bench.”
“A way out needs to be found,” KC told the Post. “The chief justice should allow the second in command to take decisions with proper justification so that the constitution is not violated.”
Former justices say that what should be the priority at this point is saving the judiciary from getting tainted. The House dissolution case is a technical and political issue, involving constitutional complexities.
Verdict of any kind will mean one party will win and the other will lose, but what justices need to make sure is the judiciary does not lose, according to them.
Sharma, the former chief justice, said while it’s the responsibility of every justice to help uphold the independence and sanctity of the judiciary and help it emerge victorious, the chief justice as the leader bears the maximum responsibility.
“The chief justice should find a solution to the current imbroglio,” said Sharma. “The practice has been that justices usually refrain from being part of a bench when questions arise.”