An unprecedented crisis has recently beset Nepal’s top court with some in the country’s legal fraternity calling for the Chief Justice to step down in the face of a series of controversies. Nepalese law student Smriti Pantha of Kathmandu University School of Law reports files this exclusive report for JURIST from Kathmandu.
The Chief Justice of Nepal, Cholendra Shumsher Jung Bahadur Rana has recently been entangled in multiple controversies. Justice Rana was glorified as a saviour for reinstating the parliament a few months ago but is now facing sordid allegations. Former chief justices, judges, legal practitioners, and civil society have stepped up the pressure on Rana to come clean on the allegations directed against him.
Rana’s bargain for a share in the cabinet with the executive was the most recent allegation put forth against him. Last month, he was called out for his role in influencing the induction of his brother-in-law, Gajendra Hamal, into the Council of Ministers in Prime Minister Sher Bahadur Deuba’s cabinet. The share in the Cabinet was inferred as a quid pro quo for helping Deuba become prime minister. Mired with this controversy, Hamal resigned within two days of his induction. However, Rana has denied pushing the appointment of Hamal as a minister.
This incident has not only tarnished Rana’s reputation, but has also cast doubts on the independence and impartiality of Nepal’s judiciary that the Constitution envisioned in its Preamble. The Constitution imposes certain checks and balances by framing the judiciary to be separate and independent from other branches of government. Rana’s involvement in bargaining for a share in the executive branch breaches this barrier between the branches consequently weakening said checks and balances.
The other allegation against the chief justice concerned his involvement in the Constitutional Council’s nomination and appointment of his close associates in February and June. A quo-warranto writ was filed against him and other members of the Constitutional Council for the appointment of these members in questionable circumstances. However, there have been several delays in even getting to the first hearing on the matter. Notably, Rana has allegedly attempted to preside over this case in the constitutional bench although he himself is a defendant.
If this allegation is true, it would be a serious violation of the principle of nemo judex in causa sua—i.e. no one should be made a judge in his or her own case. On the other hand, constitutional appointments are to be heard by the Constitutional Bench, which Article 137(1) of the Constitution dictates should be spearheaded by the Chief Justice. Thus, confusion rests on whether Rana should hear this particular case. Nevertheless, Rana has been called out for his inability to take the lead in this matter and arrive at a proper resolution.
A third allegation against Rana is that he passed on the case of Ranjan Prasad Koirala, a former Deputy Inspector General of Nepal’s Armed Police Force, who was convicted of his wife’s murder and sentenced to life in prison. Rana was denounced for reducing Koirala’s sentence by 11 years. After a public outcry, Rana agreed to review the decision, but no action has been taken in this regard as of yet highlighting his potential unwillingness to review the decision.
The last allegation against Rana is his involvement in manoeuvring cases and designating benches. A report by a committee led by Justice Hari Krishna Karki pointed out the issue of “bench shopping”—a term used to describe the unscrupulous practice of selecting benches through middlemen to secure a favourable order. To address this irregularity, the committee suggested adopting a system of drawing lots for designating benches. Although Rana publicly stated in August that he would introduce such a system, he has taken no action in this regard so far.
As a result of these allegations, the pressure for Rana to resign reached a tipping point last week with other Supreme Court Justices deciding to boycott a full-court meeting called by Rana. However, the chief justice initially indicated that he will not resign, noting that he will follow the appropriate constitutional procedures. Nepal’s political parties have chosen to remain quiet on this matter and do not appear to have any intention to get involved in the matters of the top court.
The other Supreme Court justices are boycotting benches and holding meetings to find a way out of this mess and uphold the sanctity of the judiciary. This has affected hearings for a week now, causing hindrance to public access to justice. No case had been heard since last week. However, justices have decided to hear cases starting Wednesday, with Rana hinting a graceful exit from this deadlock. Rana has further acceded to requests from the other justices to not hear cases.
For the spearhead of the judiciary to be embroiled with this many controversies is a stain on the prestige and reliability of the judiciary. To restore the judiciary from this deplorable state, the above-mentioned allegations must be investigated and a transparent report must be published to the public. The judiciary must identify its loopholes and come up with immediate action plans.
