Top court resumes business from today after over a month of crisisLottery system to come into force, stripping Chief Justice Rana of prerogative to assign cases. There, however, are still problems galore.
Supreme Court justices are set to return to their job fully from Wednesday as the top court is adopting a lottery system to prepare the cause list, in a major departure in Nepal’s judiciary that snatches away the chief justice’s prerogative to assign cases to justices.
One of the demands of the justices when they commenced their agitation on October 25 against Chief Justice Cholendra Shumsher Rana was that Rana should not be the master of the roster.
A full court meeting of 18 justices sans chief justice on November 25 decided to adopt the lottery system beginning Wednesday.
Earlier, a full court meeting on November 18 had endorsed the draft to amend existing regulations and a directive to adopt the lottery system to assign cases to justices, opening the door for all the justices to return to the benches.
However, they had been hearing petitions like habeas corpus, withdrawal of the cases and the cases in which the conflicting parties have come to a compromise that did not require lawyers.
With the lottery system in place, justices will be hearing all kinds of cases starting Wednesday.
“Full-fledged hearings will start from Wednesday,” one of the justices told the Post on the condition of anonymity. “The new system has ended the chief justice’s monopoly in assigning cases.”
The Supreme Court administration has completed all the preparations to adopt the lottery system for bench allocation.
The benches will be constituted by drawing lots which will be done every day at 10am in the presence of the justices including the chief justice, chief registrar, officials from the case management committee and technicians from the information technology department.
The extended full benches, full benches, single benches and division benches will be constituted based on the need, which will have different boxes for tokens or lots to be drawn by the justices. The tokens will be drawn based on justices’ seniority.
The adoption of the lottery system has given a way out to the present stalemate but it has its own challenges. One of two justices, who spoke to the Post, said there are complexities which they will resolve with the practice.
“The chief justice will not assign cases anymore, however, he can participate in picking the lots,” Baburam Dahal, spokesperson for the Supreme Court, told the Post. “Whether he wants to participate is up to him to decide.”
The justices have been saying they will not share benches with Rana. He is currently on leave for treatment after testing positive for Covid-19.
The justice said their position on not sharing a bench with Rana continues. “Rana can have a single bench but we won’t participate in the division and full benches where he is a member,” said the justice.
The Nepal Bar Association and the Supreme Court Bar too will participate in pleading the cases in the benches other than the ones that have Rana’s presence. The two umbrella bodies of the lawyers have been in continuous protest since October 31 demanding Rana’s resignation.
“Our protest is against Rana and we have no problem with other justices. We will return to work from Wednesday as Rana will no longer be assigning cases,” Lila Mani Poudel, general secretary of the Nepal Bar Association, told the Post. “We, however, will boycott Rana’s bench and our protest to demand his resignation will continue.”
He said that ending Rana’s prerogative in constituting the benches and assigning the cases will be a step ahead towards curbing irregularities in the Supreme Court, which the law professionals have been demanding for years.
Boycotting benches shared by Rana, however, means there would be no hearings by the Constitutional Bench, a constitutionally created bench to look into some crucial cases.
Article 137 (1) of the statute envisions a Constitutional Bench. It says there shall be a Constitutional Bench that consists of the chief justice and other four justices designated by the chief justice on the recommendation of the Judicial Council.
Whether hearings by the Constitutional Bench can take place in the absence of the chief justice is sub judice in the Supreme Court.
“There are problems in conducting hearings by the Constitutional Bench,” another justice told the Post who also spoke on the condition of anonymity. “We will hold discussions to find a solution.”
There is a general understanding among the justices and agitating legal practitioners that since Rana has been cornered and isolated, he would ultimately resign.
Even when the noose was tightening around Rana, he had said he wouldn't step down, arguing that he would rather face an impeachment motion.
Rana is currently on medical leave, but he hasn’t handed over charge to Deepak Raj Karki, the seniormost justice in the Supreme Court, according to court officials.
“He might give the charge to Karki if his hospital stay prolongs,” said an official at the court.
The agitating lawyers say Karki should lead the bench when Rana is on leave. But it is not clear whether an acting chief justice can lead the Constitutional Bench, as the constitution has made a clear provision that says the chief justice should lead the bench.
“We have discussed the matter with the 18 justices. They have assured that they will find a way out,” Purna Man Shakya, chair of the Supreme Court Bar Association, told the Post. “Since the chief justice is on leave, Karki should lead the Constitutional Bench and untangle the complexities.”