Judiciary down the rabbit hole as there’s more to crisis than meets the eyeEven if Chief Justice Rana vacates office, immediate complexities are immense. Experts say piecemeal efforts won’t offer solutions to all the ills in the Supreme Court.
Nepal’s judiciary is down the rabbit hole, amid deepening crisis over Chief Justice Cholendra Shumsher Rana’s resignation.
Supreme Court justices and lawyers have been piling pressure on Rana to step down. But Rana has refused to budge. And confrontation has escalated. Political parties that can impeach him in Parliament have maintained silence.
Amid this what everyone appears to have overlooked is the complexity the judiciary could face in the event of Rana’s removal—either through his resignation or impeachment.
If Rana leaves office, Deepak Kumar Karki, as a senior-most justice, will automatically become the acting chief justice.
To appoint Karki as the chief justice, the Constitutional Council must recommend him for the post. After that, he has to pass the parliamentary hearing following which he will be appointed chief justice by the President.
But there could be a hurdle.
The six-member council led by the prime minister has the Speaker of the House of Representatives, chairperson of the National Assembly, leader of the opposition and deputy Speaker as members. The law minister sits as a member while recommending the chief justice.
As per the Constitutional Council Act, the council can convene its meeting only when the chairperson and at least four other members are present. The council has five members including the prime minister at present, since there is no deputy Speaker.
Chances are high that KP Sharma Oli, the leader of the opposition, and Ganesh Timilsina, chair of the National Assembly, would refuse to attend the council meeting. And there are particularly two reasons. First, Oli so far has rallied behind Rana. Timilsina, who was elected upper house chair from the UML, is unlikely to go beyond Oli’s briefs. Second, Oli and Timilsina could refuse to attend the meeting as revenge. When Oli was prime minister, Deuba and Speaker Agni Sapkota did not attend the meeting, forcing the then government to introduce an ordinance to amend the provisions for convening the meeting and making recommendations.
The ordinance was repealed by the Deuba government on September 27.
“It is very much possible that Oli and Timilsina could boycott the meeting just as Deuba and Sapkota had done,” advocate Mohan Acharya, who specialises on constitutional law, told the Post. “In that case, Karki will either have to work full-term as an acting chief justice or the government will have to introduce an ordinance reducing the quorum to convene the meeting.”
Karki has until October 1 next year before he retires on age grounds.
Introducing the ordinance is not easy because Deuba’s party had criticised a similar ordinance introduced by Oli in December 2020 and May this year while Rana was facing criticism for participating in the meetings that were held based on the ordinance.
Oli on December 15, 2020 and May 4 had issued the ordinance which said a majority among the existing members of the council can convene the meeting and a majority of the attendees can take the decision in case it fails to take a decision through consensus.
The council made 58 nominations based on the ordinance and 52 of them have been appointed to various constitutional bodies.
At least half a dozen petitions against the ordinance and the appointments are pending at the Supreme Court. However, not a single hearing has been held, for which Rana has been blamed.
As he attended the council meetings as chief justice, which made the nominations, his presence in the Constitutional Bench would lead to a conflict of interest. The constitution, however, says the chief justice leads the constitutional bench.
Lawyers who are demanding Rana’s resignation have also alleged that he failed to give a way out and conduct hearings on the petitions against the constitutional appointments.
Constitutional experts say Rana’s resignation may fulfil the demands of the justices and lawyers, but that alone will neither resolve all the crisis the judiciary is facing and that rather could further complicate the matters. According to them, agitating lawyers should focus on finding a long-term solution to end malpractices in the judiciary.
“Our judiciary has gone into more confusion. The problems are here to stay even if Rana opts to resign,” Shree Krishna Aniruddh Gautam, a columnist with the Post’s sister paper Kantipur, told the Post. “I see the problem in the very demand of resignation which is Rana’s prerogative. The constitutional way of his exit is impeachment and the protesters should rather pursue that.”
Even if Rana resigns and Karki is appointed chief justice through the same ordinance that the Deuba government has repealed, Karki is set to face the Hamletian dilemma.
The pending petitions against the constitutional appointments made after Oli’s ordinance need to be heard by the Constitutional Bench led by him. If he decides to quash those appointments arguing that they were made after amending the Constitutional Council Act, he would have to quash his own appointment as well, as any ordinance brought by the Deuba government is set to be challenged in court. If Karki were to endorse the constitutional appointments, the justices and lawyers who are agitating against Rana over the same issue will lose face.
There are also questions if Karki can head the Judicial Council meetings during his term as acting chief justice. There are conflicting views from experts on whether an acting chief justice can take decisions at the Judicial Council.
The Judicial Council is the body that recommends judges for various courts including the Supreme Court.
As per the existing provisions, the Judicial Council is led by chief justice with seniormost justice of the Supreme Court, law minister and two jurists—one each picked by the government and Nepal Bar Association—as members.
The Judicial Council’s composition itself has been questioned, as it has a majority of members with political leanings.
Experts say the judiciary is plagued by too many problems and massive reform initiatives are needed, as piecemeal efforts will barely scrape the surface.
“The Nepal Bar Association should start an intellectual discourse to find a long-term solution to the crisis facing the judiciary,” said Raju Prasad Chapagain, former chairperson of the Constitutional Lawyers’ Forum. “Rana’s exit is a must, but that alone is not the solution. More problems are set to arise and lawyers and justices must be aware of that fact.”
Correction: This article has been updated to fix the fifth paragraph.