Explainer | Nepal’s justice system is crumbling. Why are political leaders silent?

Judicial integrity and independence have been questioned even from judges of the Supreme Court. But political leaders have adopted silence as a strategy for dealing with the deepening crisis at the judiciary. Why?

Durga Dulal and Nishan Khatiwada

  • Read Time 6 min.

Kathmandu: Nepal’s apex court has been in turmoil for over two weeks now. Senior judges of the Supreme Court have hung up their wigs since last week. In a rare scene, on Friday, advocates scuffled with police at the court premises. The legal fraternity has been staging demonstrations over the past weeks, calling for Chief Justice Cholendra Shumsher Rana to step down on grounds of a series of controversies and allegations leveled against him.

The crisis is deepening further with no easy way out. Former Chief Justices, Judges and legal professionals have rallied against Rana demanding that he should put in papers without any further delay. 

Media have exposed one after another dubious cases of Rana’s involvement in tampering with justice, conflict of interest, serious allegations of collusion and connivance and involvement in corruption and bribery.

The reputation of the judiciary, which is looked up as a hallowed, impartial institution, is eroding steadily as one after another Chief Justices are facing a morality crisis in recent years. The root of separation of powers has been shaken to the core.

Connivance and collusion

Experts say any charges of wrongdoings against the office bearers of vital public institutions need to be investigated. In a democracy, charges against public position holders should be taken seriously and properly investigated, said Mandira Sharma, senior international legal advisor to the International Commission of Jurists (ICJ). “If not, it will affect the integrity of the institution which will lower people’s confidence in it, and it will be difficult to achieve the desired reforms,” she said.

Sharma further said that the impartial and fair investigation into the alleged allegations should have started immediately.

A cause to worry in the ongoing crisis at the judiciary in Nepal is that all the malpractices are taking place with political leaders of powerful parties acting in cahoots with the jurists.

If recent charges against the Chief Justice are not investigated properly it will send a message to the people that the justice system is rigged in favor of political elite and powerful persons, Sharma said. 

[Related: Editorial | Nepal’s judiciary in crisis: Collusion among the judiciary, executive and legislature must end to ensure reforms]

For now, an impeachment motion from both the ruling alliance as well as the main opposition CPN-UML can relieve CJ of his duties. This could send a message that even the judiciary is not out of the check and balance principle of democracy, said political analyst Krishna Pokharel. “But it is less likely to happen given the interest of both ruling and opposition political parties.”

Pokharel, however, believes filing the impeachment motion against the CJ will in itself help solve the ongoing crisis. Yet he does not see the possibility of impeachment. “Impeachment is not possible without support from the main opposition CPN-UML, which appears almost impossible now,” he said.

Interests of political parties

In any democratic set up, it is essential to resolve the crisis of magnitude as seen in the judiciary today, says Pokharel. “It is important to maintain and enhance the judiciary’s credibility and independence.”

If the top brass of the political parties are silent, the second generation or third generation leaders should have spoken out. But they stand as silent spectators on this matter.

Meanwhile, the silence from the political actors on this debate has become glaringly apparent. Almost all political parties and their top leaders seem to be waiting for an opportunity to turn the whole debacle in their favor.

Prakash Wasti, former justice of the Supreme Court, finds the silence of the political parties mysterious. He argues that every political party is looking to benefit from the current situation. “Those who were in the government in the past also benefited (from the sitting CJ). Those who are in the incumbent government are also benefiting. They might be thinking of taking advantage, if they again come to the government,” he said.

Legal professionals also argue that by not resigning, CJ Rana is making the prospect of impeachment against him more imminent. If the CJ remains adamant on not resigning, a day of impeachment won’t be far, said Senior Advocate and former Attorney General Raman Shrestha. He compared the present situation with the situation of Lokman Singh Karki.

Karki was appointed CIAA chief in 2013 by the political parties, which together filed an impeachment motion against him in 2016. 

“Pressure on the political parties is increasing as the CJ keeps on refusing to resign,” Shrestha added.

What could be the interests of political parties and leaders in maintaining silence on this debacle? Here is a deep dive by Nepal Live Today.

CPN (UML)’s mood to exact revenge

During KP Oli’s tenure as PM, appointments were made in various constitutional bodies in the presence of National Assembly chair and CJ Cholendra Shumsher Rana, after the controversial amendment to the Constitutional Council Act was made. This dragged the CJ into controversy. Writ petitions were filed against the appointments, but there have been no hearings on them as yet.

If the CJ is removed from his position, these appointments might be reversed. Most importantly, KP Oli has strong control outside the government because of such appointments. That’s the main reason KP Oli appears to back CJ Rana and is adamant on the resignation of all other four justices.

[Related: Nepal’s judiciary debacle: Serious allegations are directed toward the Chief Justice of the Supreme Court. Nothing has happened since.]

Political observers say the UML has more to gain by not impeaching the CJ than by impeaching him. The chaos in the judiciary, they argue, will help them vindicate the claim that House reinstatement was the result of the foul play, and that Oli’s decision to dissolve it twice–in December 2020 and May 2021–was right. 

The longer the chaos in the judiciary drags on, the easier it will be for UML to establish their claim.

Nepali Congress’ dilemma

Nepali Congress has already come under public scrutiny after it failed to resist what is widely seen as the pressure from the CJ to allocate a ministerial berth for the CJ’s relative early last month.

At the moment, Nepali Congress is left with only a few options. While it cannot impeach only CJ Rana, impeaching all five of them will have a bearing on Prime Minister Sher Bahadur Deuba’s fame. Since Deuba has been elected the PM from the House of the Representatives reinstated by the current Supreme Court leadership, this could have put him in a moral dilemma as to whether to speak up about this case or not. 

Prime Minister Deuba has not clearly spoken on this matter.

In addition, if the Nepali Congress goes against the judiciary, a big question mark would be raised against PM Deuba, himself, as he is also accused of giving a share to Rana in cabinet.

Speaking against CJ Rana will automatically drag PM Deuba into controversy. This is a major reason why the ruling party is silent.

Leaders close to PM Deuba argue that there is no need to speak about the judiciary. “This is the internal issue of the judiciary,” said Nepali Congress leader Prakash Saran Mahat. “It will be resolved in the judiciary itself. If there are issues in the legislative, it will be solved within the legislative.”

Yet a big moral question hangs on Nepali Congress: It initiated the impeachment motion against CJ Sushila Karki, known for integrity. How can it remain silent on Rana’s controversial engagement?

Maoist Center’s fear of legal repercussions

The CPN (Maoist Center), a key coalition partner in the government, does not seem to be interested in raising the matter at all. The longevity of the coalition could be one of their interests. They want the current coalition to last until the upcoming general elections. 

Maoist leaders want Nepali Congress to make the move before taking any decision. 

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

Also Maoists do not want to rile up any actors in the Supreme Court as the cases against some Maoist leaders, including incumbent Speaker Agni Prasad Sapkota, are still pending at the court. “There is a fear among the Maoists due to the pending cases such as the case against the Speaker. That’s why they are reluctant to speak,” said Rishi Ram Ghimire, who is the secretary of the Supreme Court Bar Association. 

CPN (US)’s priority of alliance politics

For Madhav Kumar Nepal and leaders of the CPN (Unified Socialist), the unwillingness to delve into contentious issues is part of their strategy to keep the existing alliance intact, analysts say. Apart from this, CPN (Unified Socialist), as an alliance partner, might have taken part in quid pro quo with the Chief Justice to give ministerial berths to CJ’s relatives. 

Further, Madhav Kumar Nepal’s case of the infamous Lalita Niwas land scam is still pending at the Supreme Court. According to Ghimire, this could be one of the reasons why CPN (Unified Socialist) leaders have not spoken about the mess the judiciary is embroiled in.

Nepal also fears the fate of losing legitimacy of the party as writ petitions are already filed against CPN (Unified Socialist) and its leaders.

JSPN and other parties’ opportunism

For Janata Samajbadi Party Nepal (JSPN), as for CPN (Unified Socialist),  maintaining the coalition is vital as they are yet to have an organizational footing at the grass-roots level. As such, it has refrained from commenting on the issue.  On Saturday, Upendra Yadav, chair of the JSPN, said that the judiciary is itself capable of giving a way out, echoing Mahat. “We [politicians] should not interfere in the affairs of the judiciary,” he said.

Nepal’s democracy today stands at the crossroads. The principle of separation of powers has come into question. Political parties are guided by sheer opportunism, rather than upholding any principle per se. As things stand now, there seems to be no light at the end of the tunnel for the crisis Nepal’s judiciary is mired in. How Nepal will come out of this debacle is anyone’s guess.

ncell_ad