Lawyers’ protest against Rana to continue even as justices return to dutySome say Nepal Bar should now change its tack and focus on ‘isolating’ the chief justice while they boycott hearings.
Lawyers' ultimatum to Chief Justice Cholendra Shumsher Rana ended on Friday, just as all the justices present at the Supreme Court returned to their benches to hear cases.
The justices decided to return to duty after a full court meeting on Thursday, which was not attended by the chief justice, and to introduce a lottery system for assigning cases to justices. The new system has yet to be implemented and until then the chief justice will continue allocating cases to justices. Once the new system comes into force, the chief justice will no longer have the exclusive right to assign cases.
For now, justices have agreed to hear only a few types of cases that do not require lawyers such as withdrawal of cases and cases in which the conflicting parties have come to a compromise. Lawyers, who have been protesting against the chief justice since October 31, have, however, vowed not to participate in any hearings until Rana steps down.
With justices, who had started boycotting benches demanding Rana’s resignation, returning to work, lawyers are now in a kind of fix and they are reportedly devising a new strategy.
Lawyers have said their umbrella organisation, the Nepal Bar Association, is morally strong and it would take the current struggle against the chief justice to a logical conclusion.
The Nepal Bar has decided to boycott hearings of all cases other than habeas corpus petitions throughout the country on Sunday, and submit a memorandum to political parties outlining the wrongdoings of the chief justice. The lawyers’ sit-ins in front of the Supreme Court will also continue.
“It was beyond our imagination that our chief justice does not have an iota of shame, dignity and morality,” said Dinesh Tripathi, a senior advocate. “He is currently the chief justice only technically and without authority. He is in office but has no powers.”
“Though it is getting extremely difficult for them to topple the chief justice, Nepal Bar cannot step back now which will become a serious setback for the lawyers,” said Tripathi. “How can lawyers of the Nepal Bar work under the leadership of the ‘emperor of middlemen’ [Rana]?”
Tripathi, who is also the chairperson of Constitutional Lawyers’ Forum, said as per Article 136 of the constitution, Rana is no longer acting as chief justice “as he cannot deliver justice”.
Article 136 states that the chief justice shall have the ultimate responsibility to ensure effective administration of justice by the Supreme Court, subordinate courts, specialised courts or other judicial bodies.
Rana, who was appointed chief justice on January 2, 2019, has been embroiled in a series of controversies lately. The protest against him, however, started to build up after media reports suggested that he sought a share in the Sher Bahadur Deuba Cabinet. All the 19 justices of the Supreme Court then on October 25, in an unprecedented event in the judiciary, boycotted the full court meeting called by Rana. Justices also alleged that the chief justice was reluctant to introduce a lottery system for assigning cases.
The justices said Rana as the head of the judiciary had failed to introduce much-required reforms in the Supreme Court. The Supreme Court Bar Association joined the chorus against the chief justice. The Nepal Bar Association, which was initially hesitant to take a position, also jumped on the bandwagon.
At one point, it looked like Rana’s days were numbered, as the noose was tightening around him. He, however, maintained that he would not resign and that he was ready to face the constitutional process, meaning an impeachment motion. But political parties dragged feet, only to embolden Rana.
As the standoff prolonged, justices came under moral pressure as by not attending the benches, they were denying people their right to justice. In a deal, justices then started hearing only habeas corpus cases. After three weeks, the justices made peace with Rana on the condition that a lottery system would be introduced.
Even as the justices were seeking a middle path, lawyers upped the ante against the chief justice. And on November 11, six lawyers were injured in a scuffle with police, which enraged the Nepal Bar Association. Lawyers vowed not to let the chief justice enter his office. But not only did Rana reach his office, he even extended an olive branch, inviting lawyers for talks. Scuffles between police and lawyers became the order of the day in front of the Supreme Court. The day five justices decided to return to benches, lawyers made Rana’s resignation their bottom line.
Now that the justices who had lit the spark of protest appear to have almost doused it, lawyers are left alone to carry the protest torch.
Some lawyers say the Nepal Bar should now change its tack as one of its major demands has been fulfilled with the introduction of the lottery system, and focus on “isolating” the chief justice.
“The ongoing lawyers’ protest against Rana may continue for months, until Rana resigns, but the form of protest may change,” said Chandra Kanta Gyawali, a senior advocate. “Now the focus should be on isolating the chief justice everywhere so that he would step down feeling humiliated.”
Office bearers of the Nepal Bar Association have been saying that the lawyers should boycott the chief justice’s bench if he assigns cases for himself. They have asked the agitating justices not to share any bench with the chief justice and not to let him draw lots.
According to Purna Man Shakya, chair of the Supreme Court Bar Association, the lawyers would launch their fourth phase of struggle on Sunday.
On Friday, Chief Justice Rana sent letters to Shakya and Nepal Bar chair Chandeshwar Shrestha, once again inviting them for talks to resolve the current deadlock.
“In his letter, the chief justice has said his resignation is not an issue. He has invited us for talks to discuss ways to ensure reforms in the judiciary,” Shakya told the Post. “But it’s too little too late.”
Shakya said there won’t be a problem in justice delivery now with the introduction of the lottery system and that the lawyers’ protests would focus on making Rana insignificant.
Within the Nepal Bar, there are some lawyers who hold a different view of the protest against the chief justice. They say instead of organising sit-ins on a daily basis, the Nepal Bar should make a formal call to political parties to initiate an impeachment motion.
On Friday, during the Bar’s protest, Tulasi Bhatta, a senior advocate, urged the political parties to impeach chief justice Rana.
There are also some lawyers within the Nepal Bar who completely disagree with the ongoing protest against Rana.
“The Nepal Bar was on the wrong path right from the beginning, so it is obvious that it would never reach its destination,” Balkrishna Neupane, a senior advocate who holds a strong view against the lawyers' struggle against Rana, told the Post.
“What we are seeing in the judiciary indicates the failure of the system and the constitution. You cannot remove the chief justice unlawfully. The Bar can request parliamentarians to initiate an impeachment motion if it wants to remove Rana.”