Updated: October 27, 2021 7:05:41 am
The Supreme Court of Nepal has become sharply divided with judges taking the unprecedented step of boycotting their Benches on Monday, holding up hundreds of cases.
Judges are calling for the resignation of Chief Justice Cholendra Shumsher Rana, accusing him of making deals with political parties, especially with Prime Minister Sher Bahadur Deuba, and even securing a ministerial berth for one of his relatives. On Tuesday, a 14 out the 20 judges met Rana and insisted that he resign to save the dignity and credibility of the judiciary.
Rana told the judges he would not resign just because they want it, but would be ready to face an “impeachment motion” in Parliament, the only way provided in the Constitution to seek the exit of a judge or CJ. When they mentioned “controversial” verdicts he had delivered, Rana said, “Let us all review the so-called verdicts given by all of us.”
Political parties on both the ruling and opposition sides have so far been silent on the controversy.
A majority of the judges against Rana have the support of at least four retired CJs — Min Bahadur Rayamajhi, Anup Raj Sharma, Kalyan Shrestha and Sushila Karki — a group that commands considerable respect in the Supreme Court and is well connected with NGOs and international donors working in the field of judiciary.
Issues over Ministry, SC
On October 8, Deuba expanded his Council of Ministers to its full strength of 25. Gajendra Hamal, Rana’s brother-in-law, was one of the 18 new inductions, and was allotted the Ministry of Industries, Commerce and Civil Supplies. Hamal was not an MP, a fact that led to speculation that his induction was part of a “deal” between Rana and Deuba.
Hamal, a leader of the Nepali Congress that Deuba heads, resigned “voluntarily” three days later, but this did not close the chapter. A forum of former judges, and the four former CJs went public asking for an investigation into the episode, and also appealed to the conscience of the CJ to resign to uphold the dignity of the judiciary.
The PM too has come under fire. “Along with Rana, Deuba also must be punished for the inclusion of Hamal,” said former CJ Sushila Karki.
Some judges have held informal meetings and warned the CJ that he was going against his earlier assurances to implement judicial reforms recommended by a committee of judges headed by Harikrishna Karki, second in line of succession.
Rana had agreed to the committee’s recommendation that to end the practice of the CJ exercising his discretion in allocation of cases, and to replace it with an new mechanism effective from September 1. Now, he has agreed to begin allocation through a ‘gola’ system (lucky draw) from October 26. This has not satisfied the judges.
Power from politics
In recent years, political parties have gone through a series of splits. Several decisions taken by the leadership have been challenged in the Supreme Court. Several cases are pending while several others have been settled by the courts, at times overruling party and government leaders.
* On July 12, a Constitution Bench headed by Rana reversed a decision of the K P Oli government dissolving the House of Representatives in May, and going for mid-term polls. The Bench not only reinstated the dissolved House but also ordered that Deuba, who in May had submitted a list of MPs supporting him, be appointed as the new PM.
* Last year, ruling on a dispute over the symbol used by the Communist Party of Nepal, a two-member Bench not only restored the symbol to the petitioner but also ruled that the 2018 merger of the Communist Party of Nepal-Unified Marxist Leninist and Maoist Centre to form the Communist Party of Nepal was illegal, and that their pre-merger status should restored.
Among political cases currently in under consideration:
* A murder case against Speaker of the House of Representatives Agni Sapkota is before a Bench headed by CJ Rana. Sapkota, a leader of the Maoist Centre, is accused of “burying alive” a rival, Arjun Tamang, during the insurgency years.
* A corruption case involving two former Prime Ministers — Madhav Kumar Nepal and Baburam, Bhattarai, both now in Opposition — is in the final stages of hearing.
* A case filed by former PM Oli seeks the disqualification of Madhav Kumar Nepal and 13 other MPs who went against Oli during the vote of confidence.
Judges and politicians
During the monarchy, in early 2006, a full Bench of the Supreme Court declared the Royal Commission of Investigation against corruption illegal and unconstitutional. “It took only few hours for the order to be executed and leaders under trial released,” Min Bahadur Rayamajhi, the then CJ, wrote in his autobiography.
There was hardly any political interference in the judiciary in those days. After the Monarchy was put under suspension along with the Constitution of 1991, political parties asked sitting judges to take oath of office afresh — widely seen as an oath of loyalty to the new regime. All of them complied .
In March 2013, Chief Justice Khilraj Regmi took charge as Prime Minister for 11 months with ministers from four major parties, presenting a unique coalition between judiciary and legislature.
A case was filed over this. A Bench led by Regmi’s successor, Kalyan Shrestha, sat on it until Regmi relinquished the PM’s post and retired as CJ. Today, Shrestha is a prominent face of civil society, and occasionally issues remarks along with three fellow former CJs on how to go about constitutional cases.
About the ongoing controversy, senior advocate Upendra Keshari Neupande said: “Its time serious introspection and restructuring of the judiciary is done.”
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