Explainer: What is happening inside Nepal’s judiciary? Why is it difficult to correct the course?

Nepal’s legal fraternity has revealed the involvement of the Chief Justice in a number of anomalies. But political leaders have shown glaring indifference, making it difficult to kickstart the much-needed reforms.

Nishan Khatiwada

  • Read Time 6 min.

Kathmandu: Principally, Nepal’s judiciary is known for judicial independence. However, a series of interference by top leaders of political parties to influence justice in their favor has eroded the institutional image of the judiciary.

Judiciary is mired in opportunism, bribery and collusion, say legal experts. This time around, misconduct in the judiciary has become a topic of public discussion. 

The sad reality, however, is that neither the executive nor the legislature, neither the ruling alliance nor the opposition parties have shown willingness for reforms in the judiciary.

The history of misconduct in Nepal’s judiciary has repeated, but reforms are nowhere in sight as top leaders of political parties show no will to end the anomalies. 

Political partisanship is so rampant in the judiciary that one does not have to struggle to identify which Justices belong to, and are loyal to, which particular political party or ideology. 

The latest unfolding crisis speaks volumes about how misconduct and anomalies are deeply ingrained in Nepal’s judiciary. 

What is happening?

The ongoing crisis began to unfold after the quid pro quo between the executive and the judiciary was reported earlier this month. 

Reports of the Chief Justice (CJ)  seeking his ‘share’ in the cabinet, induction of CJ’s relative in the cabinet despite opposition from the Nepal Bar Association, and the resignation of the ‘CJ’s man’ after a widespread protest have raised a serious question on the conduct and behavior of the Chief Justice,  said the statement issued by Former Judges’ Forum on Friday, where they have spoken of dozens of malpractices that have taken place under the watch of the CJ.

Such a bold statement from the former judges is a matter of serious concern and a “glaring evidence” of malpractices in Nepal’s judiciary. 

On Tuesday, the Judges Society of Nepal issued another statement demanding that the problems should be resolved in time to prevent further damage to the judiciary. 

Meanwhile, four former CJs–Min Bahadur Rayamajhi, Anup Raj Sharma, Kalyan Shrestha, and Sushila Karki–have issued a joint statement demanding the resignation of CJ Rana. 

But Rana stands adamant on not resigning alone until all the controversial Justices resign, while the Nepal Bar Association stands firm that he should put in papers as soon as possible. 

In this context, as many as 13 Justices have demanded the resignation of CJ Rana, and have decided to boycott the bench unless he steps down. 

Besides, the Supreme Court Bar Association as well as Nepal Bar have decided that CJ Rana should resign as soon as possible. Speaking with journalists on Monday, Chandeshwor Shrestha, President of the Nepal Bar Association said, “When a CJ can’t fulfill his responsibility, the faith in the judiciary will erode. The incumbent CJ has failed. So, we have concluded that the CJ should give a way out.”

Root cause of the crisis

Nepal’s judiciary was facing a crisis of character. The recent turn of events has shown to what extent erosion and damage to the reputation of the judiciary has fallen.

The root cause of the crisis is often linked with the Constitutional Council and Judiciall Council, their compositions and appointments process.

Article 129 (2) of the constitution states that the President shall appoint the Chief Justice, on the recommendation of the Constitutional Council, and other Justices of the Supreme Court, on the recommendation of the Judicial Council.

Article 284 of the constitution states the provision related to the Constitutional Council led by the Prime Minister. Other members include the Chief Justice, the Speaker of the House of Representatives, the Chairperson of the National Assembly, leader of the opposition party and Deputy Speaker of the House of Representatives. 

The constitutional provisions, principally, are formulated in a way that no political party can dictate the appointment process of the Chief Justice and officials of constitutional bodies. Representation of the opposition party and the Deputy Speaker of the House of the Representative were included in the constitution to ensure check and balance for the merit-based appointments, observers say. 

Even that spirit is in the process of eroding. Former PM KP Oli brought an ordinance on December 15, 2020, to amend the Constitutional Council Act against the spirit of the Constitutional Council. The amendment allowed the Council to make decisions without the presence of a majority. The composition of the Council included opposition and the Chief Justice to prevent the domination of the executive but the ordinance made the domination easier. Political partitions then started to become crystal clear.

The root cause of the crisis is often linked with the Constitutional Council and Judiciary Council, their compositions and their appointments process.

Similarly, Article 153 of the constitution has a provision of the Judicial Council under the Chairmanship of the Chief Justice. Other members of the council includes the Federal Minister for Law and Justice, senior-most Justice of the Supreme Court, one jurist nominated by the President on the recommendation of the Prime Minister and a senior advocate or advocate who has gained at least twenty years of experience, to be appointed by the President on the recommendation of the Nepal Bar Association.

The problem is not with the compositions of the councils. Instead, the core problem lies in greed and the expectation of personal gains of both ruling and opposition parties. The problem started to get chronic when even the members representing the judiciary started ‘seeking their shares’ in the appointment process, a senior advocate told Nepal Live Today

The appointment in the council has been witnessing vested political interest and ‘seeking the share’ by CJs and various political parties.  

Rana’s controversies

In March 2018, the apex court of Nepal witnessed turmoil. The Supreme Court was pushed into turmoil after Justice Cholendra  Shamsher JB Rana boycotted the seven-member extended full bench.

Rana boycotted the bench on March 12 assigned to hear the contempt of court case against Dr Govinda KC and Kantipur daily’s managers and journalists, citing that CJ Gopal Parajuli should have retired on August 5, 2017, based on the age limit for civil service.

The Judicial Council relieved CJ Parajuli of his duties on March 14, and Parajuli resigned from his post a day later. Justice Deepak Raj Joshee then assumed the post of Acting Chief Justice on the basis of seniority. 

The Parliamentary Hearing Committee endorsed the Constitutional Council’s decision to appoint Rana as the CJ. After the erstwhile CJ Om Prakash Mishra retired, President Bidya Devi Bhandari administered oath to the newly-appointed CJ Rana on January 1, 2019.

President Bidya Devi Bhandari administers the oath of office and secrecy to CJ Cholendra Shumsher Rana. (File photo/RSS)

While there was some optimism from CJ Rana in the initial days, shortly after assuming office, CJ Rana gave a controversial verdict to shorten the jail term of former AFP DIG Ranjan Koirala, who was sentenced for murdering his wife. The decision even sparked huge public outrages, and people took to the streets protesting the verdict.

The bench made arguments on the grounds that Koirala’s sons needed him for guardianship.

As soon as the amendment to the Constitutional Council was made, Oli appointed 18 people to various constitutional bodies in the presence of CJ Rana and National Assembly chair Ganesh Timalsina, which led to the controversy, raising questions about the breach of the principle of separation of powers.  

The history of misconduct in Nepal’s judiciary has repeated, but reforms are nowhere in sight as top leaders of political parties show no will to end the anomalies. 

CJ Rana is showing reluctance to hear the cases related to the appointments in the constitutional bodies. He himself was the member of the Council which made the appointments. His presence in appointments made the decision more ‘suspicious’.

After the reports of the CJ asking for ‘his share’ in the cabinet, suspicion of foul play was further heightened. Gajendra Hamal, who is said to be a relative of the CJ, was appointed as industry minister on October 8, apparently on the recommendation, even under pressure, according to a source.

Legacy of misconduct

Those following the trail of misconduct trace the anomalies back to the past. “CJ Rana is not a person to be trusted. The resignation of CJ Rana is necessary if we want reforms in the judiciary,” said advocate Sabita Bhandari Baral.

However, she also argues that wrong trends of the past have helped the incumbent CJ to disregard the principle of separation of powers and become complicit in anomalies.  

According to her, misconduct has a long history and what is happening today is the continuity of the same. “Former CJs have also been mired in controversies during appointments. The trend has continued, but there is no assurance that anomalies will be swept away from the judiciary,” she said, concluding that appointment is the root cause of misconduct in the judiciary.