Noose is tightening around chief justice’s neckSupreme Court Bar demands Rana’s resignation as Nepal Bar Association calls for ‘giving a way out’.
The noose is tightening around Nepal’s top judge’s neck.
On Monday, as many as 13 Supreme Court justices kept themselves busy holding a meeting to discuss the controversies surrounding Chief Justice Cholendra Shumsher Rana. As a result, at least 216 hearings were affected, as benches could not sit.
The justices boycotted the full court meeting called by Rana. They decided to hold a meeting with Rana on Tuesday before deciding a further step.
Calls have grown loud that Rana must step down as the judiciary is facing an unprecedented crisis under him. The top court justices, however, have stopped short of demanding Rana’s resignation. So has the Nepal Bar Association. The umbrella organisation of lawyers across the country has said Rana “must give a way out”, refraining from demanding his resignation.
If the justices continue to stay away from benches and Rana refuses to step down, a judicial deadlock is on the cards, and thousands of cases will be affected. The public will be the ultimate sufferers.
“We have decided to take a decision jointly after meeting Chief Justice Rana on Tuesday at 11:30am,” said one of the justices who attended Monday’s meeting of the 13 justices.
According to him, there is a need to listen to the chief justice’s point of view also before justices make a stand.
“Every accused deserves a fair trial and their point of view is heard by the court,” he said. “So we have decided to give an opportunity to the chief justice to put forth his views on the controversies he has courted.”
Rana, who took the helm of the judiciary on January 2, 2019, is probably the first chief justice to have run into a series of controversies, with the latest one reported last month when he was said to have sought a share in the Cabinet. Some of his verdicts have also met with criticism. One of them is his June 29 last year’s decision to reduce the sentence of Ranjan Koirala, who was facing a life term for murdering his wife.
Chief Justice Rana agreed to review the decision after a public outcry, but he has not done so.
He is also facing criticism for not conducting a hearing on petitions against constitutional appointments. The erstwhile KP Sharma Oli government had introduced an ordinance to amend the Constitutional Council Act in December last year to ease the convening of the council meetings and making recommendations.
Rana, as chief justice, is a member of the council. Oli had amended the provisions in such a way that a meeting could be called and recommendations made even without the leader of the opposition and the Speaker.
After hours-long discussion of its executive committee, the Nepal Bar Association on Monday decided that it’s incumbent upon Rana to give a way out.
“As the umbrella organisation of all the lawyers across the country, we cannot take any decision in a haste, so we will wait until the situation gets mature,” said Chandeshwar Shrestha, chairperson of the Nepal Bar Association. “We will take a concrete decision after holding meetings with our advisors and senior advocates on Tuesday.”
He said the judiciary cannot be held hostage for long.
Though Rana was accused of failing to perform his duty as chief justice for quite some time, he was portrayed as the savior of the constitution and democracy when he restored the House of Representatives on February 23. The five-member Constitutional Bench led by him had overturned erstwhile prime minister KP Sharma Oli’s December 20 last year’s decision to dissolve the House. Again on July 12, the bench led by him overturned Oli’s May 21 second House dissolution.
But on July 12, the bench also directed to appoint Nepali Congress President Sher Bahadur Deuba as prime minister. Deuba is backed by the Communist Party of Nepal (Maoist Centre), the CPN (Unified Socialist) and the Janata Samajbadi Party.
Criticism of Rana flared up after media reports suggested he “sought a share” in the Cabinet. Some started arguing that it was part of a quid pro quo, as it was his bench that had ordered installation of the coalition government led by Deuba.
The Supreme Court justice who spoke on condition of anonymity said the allegation that the chief justice sought a share in the Cabinet was the tipping point.
“What you are seeing is the release of pent-up dissatisfactions and frustrations,” said the justice.
Though the Nepal Bar Association and the justices have “kept some room” before they asked for Rana’s resignation, the Supreme Court Bar Association on Monday evening came up with a strong statement.
The Supreme Court Bar Association, in its statement, said that the leadership has completely failed in extricating the judiciary from the current crisis.
“A meeting of our executive committee today arrived at a conclusion that the leadership of the Supreme Court has completely failed and to save the judiciary, the Supreme Court Bar Association demands that Chief Justice Rana must clear the way,” states the statement issued by Rishiram Ghimire, secretary of the Supreme Court Bar Association. “The association has concluded that a serious obstruction has been created when it comes to people’s right to justice, as justice delivery has suffered due to the crisis in the Supreme Court because of its leadership.”
Purna Man Shakya, chair of the Supreme Court Bar Association, told the Post that the association has decided to demand the resignation of the chief justice because the judiciary cannot be held hostage to one individual.
“If Rana refuses to step down, we will come up with protest plans,” said Shakya. “Our only goal is to save the judiciary from falling into an abyss.”
On Sunday, 14 justices had decided to boycott the meeting of the full court scheduled for 1:30pm on Monday. The full court meeting did not take place.
The 14 justices had scheduled their own meeting at 11am. Justice Nahakul Subedi, however, was absent, citing health reasons.
Justices Deepak Kumar Karki, Mira Khadka, Hari Krishna Karki, Bishowambhar Prasad Shrestha, Ananda Mohan Bhattarai, Prakash Man Singh Raut, Bam Kumar Shrestha, Tanka Bahadur Moktan, Prakash Kumar Dhungana, Sushma Lata Mathema, Kumar Regmi, Hari Prasad Phuyal, Manoj Kumar Sharma and Nahakul Subedi were present at Sunday’s meeting.
Five justices — Ishwar Khatiwada, Sapana Malla Pradhan, Anil Kumar Sinha, Tej Bahadur KC and Kumar Chudal — were absent because they were out of Kathmandu.
Questions, however, remain if Rana’s resignation will pull the judiciary out of the current crisis.
“If Rana steps down, it could mean he is admitting he is the culprit,” said Chandra Kanta Gyawali, a senior advocate. “I don’t think he will resign unless all the justices press him to step down by continuously refusing to hear cases.”
According to Gyawali, Rana’s resignation alone may not solve the problem.
“That the judiciary has come into question, there is a need for a serious introspection,” Gyawali told the Post. “We need to find ways to maintain the dignity and sanctity of the judiciary.”
Meanwhile, four former chief justices on Monday evening issued a statement calling for Rana’s resignation.
Former chief justices Min Bahadur Rayamajhi, Anup Raj Sharma, Kalyan Shrestha and Sushila Karki said in the statement that since the problem was created by the chief justice, he must take responsibility.
“We appeal to the leadership concerned to demonstrate the courage to make way and prove that one’s self-interest is above the larger interest of the judiciary,” states the press statement issued by the four former chief justices. “It is unfortunate that the members of the judiciary are not in a position to impart justice as the needle of the suspicion has been directed towards the leadership of the judiciary.”
These were the same four chief justices who had faced a contempt of court case for speaking against Oli’s first House dissolution.
Recently when Rana came under fire, he was said to have met with these four former chief justices. One of the former chief justices told the Post that Rana had made a sudden visit to his home, “seeking support”. He, however, did not elaborate what kind of support Rana was seeking.
The former chief justices have said that because of the leader of the judiciary, who has come into question for making bargains, other Supreme Court justices’ integrity has come into question.
But many wonder if Rana’s resignation will resolve the crisis facing the judiciary.
“It’s not that his resignation is the panacea for all ills in the judiciary but this could at least show some way,” said Bhimarjun Acharya, an advocate who specialises on constitutional law. “The question is how the current chief justice has failed to prove his leadership over the last two years or so.”
According to Acharya, Chief Justice Rana has failed to take a single initiative to reform the judiciary.
“The leader [chief justice] must understand why his colleagues have turned against him,” said Acharya. “His resignation will be in the best interest of the judiciary and its future.”
Political parties maintain an uncanny silence
Nepal’s judiciary is facing an unprecedented crisis. Calls have grown loud demanding Chief Justice Cholendra Shumsher Rana’s resignation. Supreme Court justices on Monday spent the whole day discussing the controversies surrounding Rana. The Nepal Bar Association, the umbrella organisation of lawyers across the country, has decided to hold a meeting with Rana on Tuesday before deciding its next step. The Supreme Court Bar Association has said Rana should resign to save the judiciary.
But even as the chief justice has been called into question, Nepal’s political parties have by and large maintained an uncanny silence.
Some leaders from the ruling and opposition parties, however, admitted that Nepal’s judiciary is in a mess because of “politicisation.”
“The day Rana was appointed chief justice, the judiciary was set to slide downhill,” said Subas Nembang, deputy leader of the Parliamentary Party of the CPN-UML, the main opposition. “Today what we are seeing is the result of the blunder that was made.”
Rana was appointed chief justice on January 2, 2019. His appointment followed the Parliamentary Hearing Committee’s decision to reject Deepak Raj Joshi for chief justice. Joshi’s name was recommended by the Judicial Council after Gopal Prasad Parajuli was ousted following controversies over his date of birth and academic credentials.
Even though Rana has run into controversy today, political parties in Nepal for long have played a greater role to damage the judiciary, according to people who have followed justice appointments for decades.
Justices in the Supreme Court have been appointed at the behest of political parties, and it is by and large apparent who is appointed at which political party’s recommendation.
Former justices, observers and experts say “too much politicisation” has led to why the judiciary is facing the crisis today.
Until a few months ago, Chief Justice Rana was hailed as the savior of the constitution and democracy. The Constitutional Bench led by him had restored the House of Representatives after it was twice dissolved by the erstwhile prime minister KP Sharma Oli. The last time the Rana-led bench overturned Oli’s May decision to dissolve the House on July 12, it also directed Nepali Congress President Sher Bahadur Deuba’s appointment as prime minister.
Weeks later, reports surfaced that Rana “sought a share” in the Cabinet. Gajendra Hamal, a district level Congress leader and a relative of Rana, was appointed minister. But Hamal resigned within 40 hours, saying his appointment caused an unnecessary controversy.
Observers say though the focus currently is on Chief Justice Rana, with everyone branding him as a villain, the rot had set in long ago when political parties started intervening in the judiciary.
The chief justice loses his post if he resigns or an impeachment motion is endorsed against him. But Nepal’s political parties are either silent or have divided opinions.
“This is the result of over-politicisation of the judiciary so we are equally responsible for it,” said a senior Nepali Congress leader who did not wish to be named fearing criticism. “Prime Minister Deuba is quite aware of the goings-on and he is in touch with all the relevant people so as to end this crisis in the judiciary.”
According to the leader, the prime minister is also in touch with leaders of the ruling coalition.
The Communist Party of Nepal (Maoist Centre), a key coalition partner in the Deuba government, however, has been sitting on the fence.
“As per the principle of separation of powers, it is up to the judiciary to take a decision,” said Dev Gurung, chief whip of the Maoist Centre and a former minister for law, justice and parliamentary affairs. “We are hearing about the violation of the code of conduct by judges, we are hearing about their moral and ethical issues, their honesty and integrity. This is very sad.”
Gurung refused to comment on the ongoing crisis the judiciary is facing in the wake of controversies surrounding Chief Justice Rana.
“We have not made any position on what is going on inside the judiciary. But if the issue comes to Parliament, we will take a decision accordingly,” said Gurung. “As for now, it’s up to the judges and lawyers. They should find a solution to the ongoing crisis.”
Members of the legal fraternity say Nepal’s political parties have absolutely failed on various fronts and that they are to blame for the current mess in the judiciary.
“Actually, Nepal’s political parties are the source of the present crisis in the judiciary,” said Shree Hari Aryal, a senior advocate. “Political parties have for long tried to use the judiciary to their advantage. Today they are not speaking because they have their own interests. Our political parties completely ignored the principle of separation of powers and today we are seeing the results. This is nothing but over-politicisation of the judiciary.”
According to Aryal, Nepali politicians have been complicit in disturbing the principles of separation of powers, which is the basic tenet of democracy.
“Nepal’s judiciary is facing a grave crisis and political parties have maintained a silence. This is not good,” Aryal told the Post. “That the chief justice is a member of the Constitutional Council, as per the constitution, itself is problematic.”
Chief Justice Rana is currently facing criticism for not conducting a hearing on petitions against appointments made by the Constitutional Council after the erstwhile prime minister Oli amended the Constitutional Council Act through an ordinance in December last year.
Ever since the Supreme Court decided to overturn Oli's House dissolution decision and direct Deuba’s appointment as prime minister, the CPN-UML has been critical of Rana.
Whether the party, now in opposition, indeed wants the judiciary to be independent, however, is questionable, as there was a time when a group of Supreme Court justice appointees had reached the UML headquarters to thank the leadership for helping them make it to the Supreme Court.
Nembang, the deputy leader of the UML’s Parliamentary Party and Oli’s close confidant, told the Post on Monday that Chief Justice Rana and other four justices of the Constitutional Bench are equally responsible for the current mess.
“We political parties are also equally responsible for what is going on inside the judiciary,” said Nembang. “We as political parties must admit and should seriously think about strengthening the judiciary.”
Leaders from the ruling coalition, however, refused to take any position.
“Though our party has not made an official position on what is going on inside the judiciary, the way issues are being reported in the media, it shows the judiciary indeed is facing a crisis,” said Jagannath Khatiwada, spokesperson for the CPN (Unified Socialist), a party that was formed after splitting from the CPN-UML. “Yes, the judiciary is in a crisis and its leadership has come into question. Justices, office-bearers of the Nepal Bar Association and legal fraternity have spoken about it. As the leader of the top court, it’s up to Chief Justice Rana to resolve the crisis.”