Despite lottery system, hearings affected for two consecutive daysLawyers refuse to participate in hearings in the absence of the acting chief justice, as Chief Justice Rana who is hospitalised for Covid-19.
The judicial deadlock was expected to end after the Supreme Court adopted a lottery system for allocating benches, snatching away the chief justice’s right to assign cases.
But on Wednesday, of the 17 cases picked for 11 benches through the lottery system, hearings could be conducted only for a few after lawyers demanded to know who the acting chief justice was. On Thursday as well, lawyers continued the same demand, disrupting hearings.
As many as 192 cases for 10 benches were picked through lottery for Thursday.
"We decided to draw the lots today also even though chairpersons of the Nepal Bar and Supreme Court Bar had requested us not to," said a justice. "However, as lawyers had said they won't take part in hearings, so we heard only some minor cases in which lawyers are not required."
The justices heard only five cases assigned to three different benches.
Chief Justice Cholendra Shumsher Rana was not present on both days when justices drew the lots, as he has been receiving treatment for Covid-19 at the Armed Police Force Hospital in Balambu, on the outskirts of Kathmandu.
Rana was admitted to the hospital on Monday. He, however, has neither applied for leave nor deputed acting chief justice. The Nepal Bar Association and the Supreme Court Bar Association have taken exception, saying the judiciary “cannot be without an in-charge.”
As per the new provision implemented in the Supreme Court for preparing the cause list, the chief justice, justices, chief registrar and officials from the case management committee and technicians from the information technology department should be present when lots are drawn by justices to hear cases.
The introduction of the lottery system was one of the demands of justices and lawyers’ associations when they launched their protest against the chief justice, saying Rana had been assigning cases in an unscrupulous manner.
As per the new regulations, Rana “can” draw lots, but he can pick those only that are meant only for a single bench, as justices have said they won’t share the bench with him.
Court officials have said that it was up to the chief justice to participate in drawing lots.
“It’s up to the decision of the chief justice whether he will draw the lots or not,” Baburam Dahal, spokesperson for the Supreme Court, told the Post earlier this week.
Amid continued standoff at the Supreme Court, top leaders of the five ruling coalition partners on Thursday morning decided to advise Rana to go on medical leave and depute the seniormost justice as acting chief justice.
"Today's meeting decided that we should ask the chief justice to let the seniormost justice take charge of the Supreme Court,” Gyanendra Bahadur Karki, spokesperson of the government, told reporters after the meeting.
Thursday’s meeting was attended by Prime Minister Sher Bahadur Deuba, Chairman of Communist Party of Nepal (Maoist Centre) Pushpa Kamal Dahal, Chairman of CPN (Unified Socialist) Madhav Kumar Nepal, Chairman of Janata Samajbadi Party Upendra Yadav and Durga Poudel, vice-chair of the Rastriya Janamorcha.
However, hours after the ruling coalition’s decision, Rana, according to a senior justice of the Supreme Court, communicated to the justices that he would be discharged from the hospital on Friday.
Once he returns to Baluwatar, the chief justice’s official residence, Rana is likely to discharge other administrative duties from there, which will resolve the acting chief justice issue.
Lawyers, meanwhile, have said that they will continue their protest against Rana. The Nepal Bar Association is planning to bring in more lawyers to the Supreme Court premises to step up its protest.
Lilamani Poudel, general secretary of Nepal Bar, said lawyers are not going to backtrack on their demand for the chief justice’s resignation.
“Our protest will continue,” Poudel told the Post. “Even if the chief justice joins the office, he should not draw the lots. If he refuses, we will boycott his bench. Justices have also promised that they won’t share his bench.”
Despited mounting pressure, Rana has maintained that he would not resign under the pressure of street protest and that he would rather face the constitutional process—which is an impeachment motion.
Political parties, neither the ruling nor the opposition, so far have shown any interest in impeaching Rana.
But on Wednesday, Pushpa Kamal Dahal, chair of the Communist Party of Nepal (Maoist Centre), appeared to be showing solidarity with the agitating lawyers.
“We have been discussing the issue [the judiciary crisis] within the coalition partners ever since you started raising it,” Dahal told lawyers on Wednesday while receiving a memorandum from them. “This [stalemate] is not linked just to the judiciary but to the whole political system.”
Now that the acting chief justice issue has been resolved with Rana’s scheduled return from hospital to discharge administrative duties, it was not immediately clear whether lawyers would participate in the hearings of other justices.
One of the senior justices of the Supreme Court, who was present during their joint conversation with Rana over telephone on Thursday, said the chief justice told them that there was no need of acting chief justice because he was in touch with the administrative staff and that he would be discharged from the hospital on Friday.
Justices who are increasingly under moral pressure, as the public has been suffering, however, are keen on starting hearing all kinds of cases.
“The ball is in lawyers’ court now,” said one of the senior justices of the Supreme Court. “We have already decided to join the benches after introducing the lottery system as we cannot act like protesters.”
Chandeshwar Shrestha, chair of Nepal Bar Association, said lawyers will participate in hearings only after 12:30pm after their regular protest.
“Our demand that the chief justice must step down continues,” said Shrestha. “We cannot take part in hearings during our protest hours. After our protests, lawyers may attend the hearings.”
The agitating lawyers, however, appear to have fallen between two stools, as they can neither withdraw their protest nor continue it for long as justices have already decided to return to benches.
Sunil Pokhrel, former general secretary of Nepal Bar, said lawyers should now focus on isolating the chief justice by participating in the hearings in other benches but boycotting Rana’s.
“They should also utilise former chief justices and prominent senior advocates as backchannels to pressure the chief justice to resign,” Pokhrel told the Post. “The Nepal Bar Association is in a fix. The lawyers started their protest with the highest demand, instead of making step by step moves. Once justices start hearing cases, Nepal Bar cannot stop lawyers from participating.”