Nepal’s judiciary is facing an unprecedented crisis. Calls have grown for Chief Justice Cholendra Shumsher Rana’s resignation. As many as 15 Supreme Court justices have turned against him. The Supreme Court Bar Association has minced no words in demanding that Rana must step down. The Nepal Bar Association has stopped short of demanding Rana’s resignation but has called on him to “give a way out”. On Monday, four former chief justices—Min Bahadur Rayamajhi, Anup Raj Sharma, Kalyan Shrestha and Sushila Karki—said Rana's resignation is a must to save the judiciary. On Tuesday, 15 Supreme Court justices met with Chief Justice Rana. But Rana told them he would not resign.
Why Chief Justice Rana, who until a few months ago was hailed as the savior of the constitution and democracy, is suddenly being portrayed as a villain?
Born on December 13, 1957, Rana worked as a legal practitioner from November 22, 1979 to April 10, 1996. He was appointed an additional judge at the then Appellate Court Janakpur on April 15, 1996 from among advocates. From January 26, 2006 to September 23, 2008, Rana served as a member of the Special Court. He was appointed a Supreme Court justice on May 27, 2014. He succeeded Om Prakash Mishra as chief justice of Nepal on January 2, 2019.
What is his latest controversy?
Reports surfaced last month that Rana demanded a share in the Sher Bahadur Deuba Cabinet. The Deuba government was formed as per a July 12 order of the Constitutional Bench. In the landmark decision, the Rana-led bench not only ousted KP Sharma Oli from office but also, in an unprecedented move, ordered the appointment of Deuba as new prime minister. Days before Deuba expanded his Cabinet, reports surfaced that Gajendra Hamal was being appointed a minister at the behest of Rana. Deuba did appoint Hamal a minister, but the latter resigned within 40 hours. It was largely believed that Rana sought his share in the Cabinet as part of the quid pro quo. Critics said by demanding a ministerial post, the head of the judiciary had undermined the principle of separation of powers. He, however, has denied the charges he wanted his people in the Cabinet. During a meeting with Supreme Court justices on Monday, Rana said that he instead had asked the ruling coalition not to appoint Hamal. Hamal is a district level Nepali Congress leader and a relative of Rana. Pushpa Kamal Dahal, chair of the Communist Party of Nepal (Maoist Centre), a key coalition partner in the Deuba government, was the only politician who strongly defended Hamal’s appointment.
What other charges does Rana face?
Justices and bar associations say Rana failed to take initiatives as the chief justice failed to fix a host of problems in the judiciary, including corruption. A study panel led by Justice Hari Krishna Karki also had pointed out corruption in the Supreme Court. The panel had suggested an automated system for designating benches. But until such a system is in place, benches should be assigned through the drawing of lots, the panel suggested. As per the longstanding tradition, the chief justice assigns the benches. But there have been complaints that “bench shopping” is rife. “Bench shopping” is a term for the unscrupulous practice of selecting benches through middlemen to ensure a favourable order. Though Rana had agreed to introduce the system of drawing lots, he did not.
Rana also faces the charge of not conducting a hearing on petitions against constitutional appointments. Erstwhile prime minister KP Sharma Oli in December last year had introduced an ordinance to amend the Constitutional Council Act. Provisions for holding Constitutional Council meetings and making recommendations were eased through the ordinance. As per the changed provisions, the council had held meetings and appointed as many as 52 individuals to different constitutional bodies. The meetings were held in the absence of House Speaker Agni Prasad Sapkota and Deuba, who was then the leader of the main opposition.
Rana as the chief justice is a member of the Constitutional Council.
The petitions against constitutional appointments are to be heard by the Constitution Bench, which as per the constitutional provision, is led by Rana. Lawyers argued that there would be a conflict of interest if the Rana-led bench heard the cases, as he was part of the meetings that made the appointments. Though Rana once decided not to lead the bench, a petition was filed at the Supreme Court saying the constitution did not allow Rana to remain absent from the bench. Justice Hari Phuyal issued a ruling saying the Constitutional Bench cannot sit without Rana to hear the petitions against the Constitutional Council. Lawyers argued that Rana as the leader of the judiciary should have taken the lead to clear the confusion.
Have Rana’s rulings in the past been controversial?
On June 29 last year, Rana decided to reduce the sentence of Ranjan Koirala, who was serving a life term for murdering his wife. After a public outcry, Rana agreed to review the decision, but not even a single review hearing has been held so far. On one occasion, Rana acquitted some people charged with gambling. Rana in his order said that the card game called “marriage” is an intellectual game and that playing it does not amount to gambling.
During his tenure as a member of the Special Court, which deals with corruption cases, Rana had acquitted a number of accused against whom the Commission for Investigation of Abuse of Authority had filed chargesheets. When the decisions by Rana were reviewed by the Supreme Court, a number of them were overturned.
Is Rana the first chief justice to have courted controversy?
Rana succeeded Om Prakash Mishra who had a brief term because of his age. Before Mishra, chief justice nominee Deepak Raj Joshee failed to get through the Parliamentary Hearing Committee. Joshee was nominated after Gopal Prasad Parajuli but was ousted following a controversy over his age and academic credentials. The Post’s sister paper Kantipur had reported discrepancies in Parajuli’s age, academic credentials and his verdicts for which the paper faced a contempt of court charge. It was Rana who had decided to boycott the full bench called by Parajuli to hear the contempt charge against the paper, saying Parajuli was in his post illegally. The paper was later acquitted of contempt of court charge. A full text of the ruling was made public last month. Rana’s decision to boycott the bench called by the then chief justice Parajuli was criticised by the Nepal Bar Association as “obstruction of justice”.
Has any chief justice been impeached in Nepal in the past?
No chief justice has been impeached, but an impeachment motion was filed against Sushila Karki on April 30, 2017. Lawmakers from the Nepali Congress and the Communist Party of Nepal (Maoist Centre) had filed an impeachment motion against Karki, weeks after she quashed the government decision to appoint Jaya Bahadur Chand as the chief of Nepal Police. The Congress and the Maoist Centre were leading a coalition government then. Advocates Sunil Ranjan Singh and Kanchan Krishna Neupane had challenged the impeachment motion against Karki, Nepal’s first female chief justice. Rana was a Supreme Court justice at that time.
A single bench of Rana stayed the impeachment motion.
“It appears that the impeachment motion was brought in relation to an apex court order on the appointment of chief of Nepal Police, which is sub judice in this court, but the move, prima facie, is against the spirit of the constitution,” Rana’s bench observed. “Hence, as per Rule 41 (1) of the Supreme Court Regulations, the court orders the defendants to put the impeachment motion on hold until a final decision on this petition that seeks to stay the issue.”
What position Rana has taken?
Rana told justices on Tuesday that he would face the constitutional process rather than resign, hinting that political parties can bring an impeachment motion against him if he were to be removed. Rana said he won’t step down just because there are calls for his resignation from the streets and the media. Rana also said that he is ready to step down provided that other justices who have come into question are ready to resign. He did not name names, but it is believed he was hinting at four members of the Constitutional Bench that on July 12 overturned Oli’s House dissolution decision and ordered Deuba’s appointment as prime minister. Justices Deepak Kumar Karki, Mira Khadka, Ishwar Khatiwada and Ananda Mohan Bhattarai were the members of the Rana-led bench. Oli’s party CPN-UML has been critical of the ruling.
What position Nepal’s major political parties have taken on the recent controversy in the judiciary?
The Nepali Congress and the Maoist Centre, which are leading the coalition government, have maintained silence. On Tuesday, Oli said that his party has no intention to get involved in the political maneuverings in the Supreme Court. “We are for an independent and impartial judiciary which upholds the principle of separation of powers,” said Oli in Biratnagar.
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