Parties mum on judiciary crisis, but lawyers affiliated to them speak upAdvocates aligned to Congress and UML, who are under the Nepal Bar Association that is demanding Rana’s resignation, say court hearings should not be obstructed.
When the Nepal Bar Association finalised its first phase of struggle against Chief Justice Cholendra Shumsher Rana, its leadership had to struggle a lot. There already was strong opposition within. However, its leadership managed to take a decision on the first phase of the struggle, which started from Sunday, with a firm position that the chief justice must resign. The first phase of struggle concluded on Wednesday.
A deep division has surfaced now in the Nepal Bar Association.
The Democratic Lawyers Association (DLA), affiliated to the Nepali Congress, and the Progressive & Professional Lawyers Association (PPLA), affiliated to the main opposition CPN-UML, have expressed concerns about the continuous halt in justice delivery due to justices’ refusal to attend the benches and Nepal Bar’s position. Both are the key constituents of the Nepal Bar Association.
Issuing separate press statements, which are almost identical in their themes,
UML- and Congress-affiliated lawyers’ associations have demanded an end to the ongoing obstruction of hearings. Supreme Court justices so far have not been hearing cases even though they have not made any official position on this. The justices’ struggle against the chief justice, however, has led to no hearing of cases at the Supreme Court.
After criticism, hearings on habeas corpus cases have begun, but many say justices must hear other cases as well, as avoidance of benches affects the public.
“Chief justice and justices of the Supreme Court cannot avoid their constitutional duties of imparting justice,” states point number 5 of the PPLA statement and point number 3 of the DLA statement. “We appeal for an end to such activities which are against the legal spirit and democratic values. Not only the habeas corpus cases, hearings of all cases must resume soon.”
Both the statements have come at a time when the Nepal Bar Association is holding its meeting after concluding its first phase of struggle to chart out a strategy to intensify its protest against Rana after the Tihar festival.
The Nepal Bar leadership has already announced that it will come up with a stronger protest plan spread across the country if the chief justice refuses to step down.
Supreme Court justices, Nepal Bar Association and the Supreme Court Bar Association have been demanding Rana’s resignation, saying that the chief justice failed to lead the judiciary. They have alleged that Rana is the root cause of all the mess in the judiciary.
As many as 15 Supreme Court justices have not heard cases, except for those related to habeas corpus, for the last nine days.
The justices are already under moral pressure, as questions have arisen over their moral and constitutional duty. The justices have been calling on Nepali political parties to take initiatives “to remove” the chief justice through an impeachment motion, but leaders have maintained an uncanny silence so far.
Earlier on Sunday, Chief Justice Rana had floated a proposal before the Supreme Court justices that he was ready for a “graceful exit”, but he has backtracked now.
The crisis in the judiciary has deepened over the past two weeks with demands from lawyers’ associations and justices growing for his resignation.
Now with two major constituents of the Nepal Bar Association–the PPLA and the DLA–demanding that hearings must resume at the Supreme Court, the Nepal Bar is in a dilemma.
“Our major concern is that hearings must not be obstructed, affecting service seekers as they are suffering a lot,” said Yogendra Adhikari, chairperson of the DLA. “We want a solution to the ongoing deadlock as soon as possible and action against those involved in defaming the judiciary.”
Bhojraj Acharya, secretary of the PPLA, said boycotting the benches under any pretext is wrong and therefore justices must resume hearings at the earliest.
“We know that the chief justice is responsible for the crisis in the judiciary but that does not mean the Supreme Court should stop delivering justice,” said Acharya. “We have come to a conclusion that justice must not be obstructed after holding discussions among stakeholders, including the DLA. We need to find a solution to the current impasse soon.”
He said that justices have not only broken the chain of command but also have refused to impart justice to the people.
There is no clarity on when the current crisis in the judiciary is going to end. The Supreme Court will go on a holiday for four days starting Thursday for the Tihar festival.
If constitutional provisions are to be followed, a chief justice can be removed only through an impeachment motion. Or else, either a chief justice has to resign or die for the post to become vacant. Incumbent Chief Justice Rana, despite coming under intense pressure, has shown no signs of stepping down as of now.
When the Nepal Bar decided to go for the first phase of protest demanding the chief justice’s resignation, the leadership faced a difficult time convincing its members close to the PPLA.
In the 25-member Central Working Committee, 20 members are from the left-leaning group. Since the UML and the Communist Party of Nepal (Maoist Centre) had an alliance, it was called Nepal Lawyers Association (NLA).
Chandeshwor Shrestha led the alliance.
The UML and the Maoist Centre had merged in May 2018 to form the Nepal Communist Party (NCP). But it was invalidated by the Supreme Court on March 7.
“Despite strong opposition, we managed to endorse the struggle plan through consensus,” said one of the office-bearers of the Nepal Bar Association after the decision on October 29 to begin the first phase of protest against the chief justice.
“I am not affiliated to any party at the moment,” said the office-bearer who refused to be named.
The UML’s position in the current judiciary crisis is that the chief justice should not resign. The Constitutional Bench led by Chief Justice Rana, which had four justices as members, had ousted UML chair KP Sharma Oli as prime minister on July 12 and appointed Nepali Congress leader Sher Bahadur Deuba as prime minister.
UML chair Oli has made it clear that there is no need for Rana to resign. There are also talks that the UML might file an impeachment motion against four other justices who were the members in the Constitutional Bench that ordered Deuba’s appointment as prime minister.
Justices Deepak Kumar Karki, Mira Khadka, Ishwar Khatiwada and Ananda Mohan Bhattarai were the members of the Constitutional Bench that overturned Oli’s May 21 decision to dissolve the House of Representatives and directed Deuba’s appointment as prime minister.
With divisions surfacing in the Nepal Bar, calls for Rana’s resignation can get weakened.
On Wednesday morning, a meeting of the Nepal Bar Association was held to discuss the modality of protests. However, the meeting could not decide a protest plan for November 7 and 8 when the courts reopen.
As the justices are under extreme pressure from all quarters of society, the statements of the two most powerful lawyers organisations could make things difficult.
“We have shown the way by avoiding benches for such a long time. As we cannot keep on avoiding benches, the bar, the media, civil society and political parties must take up the issue,” said one of the Supreme Court justices. “The Nepal Bar Association has started its struggle, but it all depends on how it takes up the issue after Tihar.”