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In a post-colonial world, we tirelessly strive to decolonize our minds, lives, and the choices we make. However, one of the arguably beneficial remnants of colonization is the struggle to maintain the ‘rule of law’, particularly as exemplified in the Magna Carta. While there are many variations to what the ‘rule of law’ principle constitutes, the basic tenets are that (1) laws be fair, clear, publicized, and easily accessible; (2) there is accountability under law; (3) the process by which laws are enacted, administered, and enforced is accessible, fair, and efficient; and (4) everyone has access to fair and impartial justice.
As these principles are enshrined in the Nepali constitution itself, each action of the different organs of the government need to be weighed as per these basic tenets as a true test of constitutionality.
Much has been written about the need for a fair, accountable, and independent judiciary over the past couple of months. The need for an independent judiciary emanates from the principle of separation of powers. Essentially, the three organs of government — legislative, executive, and judiciary — must function independently. This principle is based on several important premises. While it seeks to individually strengthen and empower the different functions of each organ of government, it also hints at an interdependence between them and most importantly, on each organ acting as a check on the others.
This principle is of particular relevance at a time when a scandal has erupted around Chief Justice Cholendra Shumsher Rana, casting a dark cloud over judicial independence and accountability. The controversy has also raised a number of questions on the current legal framework, pointing to an urgent need for reform within the judiciary.
Role of the chief justice
The chief justice leads the Supreme Court, which is the final authority when it comes to interpreting the constitution and laws. In the Nepali legal system, the chief justice is appointed on the basis of seniority for a term of six years or until 65 years of age, whichever comes earlier.
As the highest office in the judiciary, the chief justice has the ultimate responsibility for the administration of justice by the Supreme Court, subordinate courts, and other judicial bodies.
With regards to the administrative functions of the Supreme Court, the chief justice is responsible for the formation of the constitutional and other benches, allocation of cases and rotation of judges. The chief justice is also a member of a member of important bodies such as the Constitutional Council, which is responsible for making recommendations for the chiefs and officials of constitutional bodies; the Judicial Council, which recommends appointments, transfers, disciplinary action or dismissal of judges; the Judicial Service Commission, which makes recommendations for appointments, transfers, and promotions for officers of the Federal Judicial Service; and other bodies such as the Mediation Council, which oversees mediation as an alternate dispute resolution mechanism to mainstream litigation.
Erroneous interpretation of the law
Coming back to the issue at hand, the current scandals in the judiciary has emanated from a number of recent controversial cases.
The first case involves the second dissolution of the House of Representatives by the administration of KP Sharma Oli in mid-May. The case was decided by a Constitutional Bench of five judges, presided over by Rana. In the decision, the judiciary issued a mandamus that the House be reinstated and that the prime minister be appointed as per signatures from members of the House of Representatives. The ruling also led to a very significant interpretation of Article 73 of the Constitution.
The ruling was controversial with many in favor and opposed to it. Defenders of the judgment state that in the absolute failure of the legislative and executive to come up with a solution, the judiciary had no choice but to overstep its mandate. But in such cases, where the judiciary goes beyond its bounds and engages with the executive and legislative, it must make certain to state clearly that this is a one-off case, and that it cannot set a legal precedent. Not doing so sets a dangerous course for violating the principle of separation of powers.
The second case involves the shortening of the life sentence of former Deputy Inspector General of the Nepal Police Ranjan Koirala, who had been convicted by the Kathmandu District Court for the murder of his wife Gita Dhakal. A full bench presided by CJ Rana decided to shorten his life sentence to just eight-and-a-half years, based on an erroneous interpretation of the Muluki Ain, which is no longer in force. The provision relied upon grants the Chief Justice the leeway to lessen the punishment, on grounds of suspicion that it may have been an accident, despite a confession being recorded or in view of the circumstances in which the act was committed. This is most suspect, A review petition is currently pending before the Supreme Court in this regard.
The third case regards reservations in public service, which did not involve the chief justice and thus hints to a larger problem with the judiciary. A judgment by a division bench of the Supreme Court, constituting justices Bishwamber Prasad Shrestha and Ananda Mohan Bhattarai, clearly states that reservations should not be based on caste and/or class alone, but on necessity. This judgment undermines the very rights of the “indigenous nationalities, oppressed classes, backward minorities and marginalized communities” that have been afforded special protection under the Constitution.
Reading this particular judgment, it appears to have heavily relied on Indian jurisprudence. Nepal cannot and ought not to rely solely on Indian jurisprudence, which talks about the ‘creamy layer’ in reservations, simply because we are not there yet. Without any empirical verification, it is baseless to comment on who and how many are benefitting from reservations.
Conduct and accountability of the chief justice
Besides the erroneous interpretation of law by the judiciary in the above cases, there appears to be enough reason to seriously consider the allegations pertaining to the conduct of Chief Justice Rana. Amongst the many accusations that have been levelled at the chief justice, the most controversial ones are those regarding Rana’s personal involvement in appointments made by the Constitution Council as well to the prime minister’s Cabinet of Ministers. Rana is reported to have personally lobbied for Gajendra Hamal, his brother-in-law from his first marriage, to be made a Cabinet minister. He was also involved present at Constitutional Council meetings, held under the aegis of a controversial ordinance promulgated by former prime minister Oli, to appoint dozens of members to constitutional bodies like the Commission for the Investigation of Abuse of Authority and the National Human Rights Commission.
Rana has also come under scrutiny for his formation of the Constitutional Bench, mishandling of cases, and allotment of cases to particular benches. His detractors allege that Rana has deliberately delayed listing the writ petition filed by advocate Om Prakash Aryal that challenges the Constitutional Council ordinance and the appointments made under it, of which Rana was a part. Although the writ was filed in June, no effective hearing date has been granted by Rana till date.
Regardless of the veracity of these allegations in the public and press, the very fact that they are being made is a cause for concern as they call into question the impartiality and fairness of the judiciary.
Impeachment the only recourse?
Article 101 of the constitution provides that one fourth of the total members of the House of Representatives may move a motion of impeachment against the Chief Justice on the grounds of their failure to fulfill their duties, serious violations of the constitution and the law, incompetence, misconduct or failure to discharge their duties honestly, or a serious violation of the code of conduct.
A prima facie reading of the grounds demonstrates that an impeachment motion ought to be brought against Rana. It is astounding that such a flagrant violation of his duties and the constitution by the present chief justice has failed to bring about serious consideration of such a motion by the political parties. Meanwhile, an impeachment motion was lodged in 2017 against Sushila Karki, Nepal’s first and only female chief justice, despite her reputation for honesty and impartiality. Back then, I had commented on the absurdity of the baseless impeachment motion.
The patriarchal political motivations behind these two instances indeed makes one question whether past and present governments have indeed understood and truly implemented the spirit of the constitution. And in the event of the ‘unwillingness’ of the legislature to lodge an impeachment motion, what is the recourse?
In the absence of any other legal recourse, Supreme Court judges have resorted to boycotting benches and denying justice to hundreds of aggrieved persons for a whole week now. While this may be their attempt to show their commitment to an independent and impartial judiciary, there is no denying that this also amounts to an absolute dereliction of duty at the cost of public suffering. How long are the other Supreme Court judges going to deny the public justice? Statements by previous chief justices, senior lawyers, the Nepal Bar Association and other forums do not seem to have had any effect, as Chief Justice Rana is adamant on not stepping down. The Nepal Bar Association on Friday, October 29, announced its own protest, asking all lawyers to join them in wearing a black band on their arm from 10-11 am.
All of the above is just the tip of the iceberg of what is ongoing in the judicial system, and it begs the question, who is going to check the judiciary and how?
A need for reform
The lack of proper legal mechanisms to address this issue of a maverick chief justice, amongst others, calls for urgent reform. but before launching into reform, there is a need to study and understand where and how exactly the judiciary has failed. Such a study will need to be performed by independent, respected professionals, and published.
Formation of committees and commissioning of studies is not new to the Supreme Court. Three reports have been prepared in recent times for the Supreme Court to improve its working. The first one was made in 2008/9 under the leadership of Justices Hari Aryal, Prakash Osti, and late Bharat Raj Upreti, which was not even accepted by the Supreme Court. The second one was made under the leadership of Justice Ram Prasad Shrestha in 2010, which was removed from the website of the Supreme Court. The third and most recent one was made in July of this year under the leadership of justice Hari Krishna Karki. All three speak about corruption and interference in the judiciary by intermediaries. The reforms suggested by all three reports have neither been publicized nor adopted.
Based on the present circumstances, my suggestions are threefold: the appointment of judges needs to be objective, transparent and fair; judges while discharging their duties need to interpret the law to be true to its spirit and also accountable to their office and the public; and finally, judicial review needs to be strengthened and the chief justice must be included within this purview.
First, the appointment of judges needs to be made transparent and inclusive while ensuring objectivity. While the parameters for judges at the district court, high court and Supreme Court are spelled out in the Administration of Justice Ac, 2016, it is apparent from the rut the judiciary is currently mired in that the current system has failed due to nepotism and corruption. The entire process of appointment is therefore in need of an overhaul.
In addition to the above, we also need to objectively review whether the senior-most judge should be appointed as chief justice. In the UK, for instance, the President of the Supreme Court is chosen by an independent committee, based on the application of the candidate, detailed interviews, and fulfillment of the criteria laid down by the Parliament. In the United States, the chief justice is nominated by the President and the decision is then confirmed by the Senate. While the practice of appointing the senior-most judge as chief justice is followed in India, in light of the fact that such a system promotes complacency and gives little time for effective reform, we need to analyze our judicial history and evaluate if this system has benefited us.
Second, as one of the tenets of the rule of law, officers of the state and more importantly, dispensers of justice, judges should be impartial, independent, and accountable. It is important that these values are imbibed in the judiciary at the outset, before judges are appointed.
Judges, including the chief justice, need to have yearly reviews of the quality of their judgments, their conduct, and the discharge of their duties. At the end of the day, however, judges should perform their duty towards the law and the public, not in fear of accountability mechanisms.
Third, the Supreme Court, as the final arbiter of justice, has the responsibility to interpret laws in a manner that it is able to capture the legislative letter and intent, while being mindful of setting precedents. In judgments that do not meet these parameters, what recourse is available to the public? For judgments in which the interpretation of law falters, one recourse is to file a review petition or wait for the judiciary to correct its course in future judgments.
In terms of conduct and accountability of judges, the Judicial Council, which is headed by the chief justice, reviews any complaints filed against a judge. This process in itself needs to be strengthened and made transparent. However, in the present case, when all complaints seem to be largely against the chief justice, it is crucial that the allegations be investigated and made public so that the faith of the public can be restored in the judiciary. The process of review of judges’ conduct and accountability therefore needs to be wholly reimagined to also include the chief justice.
To conclude, the current chief justice is not the sole reason why the judiciary has failed. The controversy around Rana, however, serves as a reminder as to where the judicial system is and the need to restore public faith in the functioning of the judiciary. To achieve that, sweeping reforms of the judiciary are necessary.
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