Chief Justice Versus The Principle of Natural Justice


On 13 February, the three ruling parties (Nepali Congress, Maoist Center and Janata Samajbadi Party) registered an impeachment motion against Chief Justice (CJ) Cholendra Shumsher Rana at the House of Representative. 98 lawmakers from the ruling alliance have signed the impeachment motion.

The office of Chief Justice been has been marred by controversy since October last year after he allegedly demanded a share in Prime Minister Sher Bahadur Deuba’s Cabinet. He was accused of seeking a ministerial berth for his brother-in-law, who was appointed as a minister on October 8. The controversy began when Gajendra Hamal, Chief Justice Rana’s brother-in-law, was appointed as one of the 18 new inductees for the Ministry of Industries, Commerce, and Civil Supplies. Since Hamal was not a member of parliament, it was presumed that his entrance was a part of a deal between PM Deuba and Chief Justice Rana. When questions were raised over his appointment, PM Deuba requested Hamal to resign the position. Hamal’s appointment and resignation has put the spotlight on Chief Justice Rana and PM Deuba for possibly violating the doctrine of separation of powers.

It is pertinent to note that his professional conduct has long been under the radar, but it was only after the October 8 incident, that the controversy for allegedly making attempts to gain political and personal incentives while delivering verdicts gained prominence. He not only dismantled the separation of powers doctrine by questioning the independent judiciary but also violated the principles of natural justice- a fundamental procedural requirement of fairness which is the basis of a good administrative set up of any country.

For instance, his verdict on releasing Ranjan Koirala, a former deputy inspector general of the Armed Police Police Force, convicted for the murder of his wife,  after serving eight-and-a-half years jail term was condemned by the legal fraternity. According to the official at the Attorney General’s office, the seriousness of crime of murder is such that it should not be reduced. However, the Supreme Court in its verdict stated that the decision was made keeping in mind the interest of Koirala’s  children who have been living without their parents for a long time. On the same day of the verdict,  the Office of the Attorney General had filed a review petition on July 23, 2020. No hearing has been scheduled over the case, though 15 months have passed since the review was officially allowed. This incident has led to casting of doubt on the dignity of judiciary.

Furthermore, his participation in the meeting of the Constitutional Council called for by the then Prime Minister KP Sharma Oli, recommending 18 names for various posts in different constitutional bodies was heavily criticised, with constitutional expert calling it “a judicial misconduct and a fraud on the legal system”. His involvement in the council meeting was condemned because on December 15, President Bidya Devi Bhandari issued an ordinance to amend the Constitutional Council (Functions, Duties, Power and Procedure) Act-2010, which was later challenged in the Supreme Court  for being unconstitutional and illegal. The petition which was moved to the Constitutional Bench for hearing, was headed by the CJ Rana.  One of the principles of natural justice is “a man cannot be a judge in his own case”. CJ Rana’s participation in the meeting may result in a preconceived opinion or a predisposition or a predetermination to decide the case in a particular manner so much so that it does not leave the mind open.  It may be argued that he acted as a judged in his own cause as he was directly, otherwise, involved in the subject matter of the case. It is a generally well known principle in law that “justice must not only be done, but must appear to be done”. However, mere involvement does not violates the principle of natural justice unless there is a  a real likelihood of bias from the side of CJ Rana.

Inclined to redeem the dignity and credibility of the judiciary, Supreme Court justices, former justices and lawyers—from Nepal Bar Association and Supreme Court Bar Association, called for Chief Justice Rana’s resignation. However, Chief Justice Rana rejecting the allegations against him, refused to resign. Following his statement, the agitating legal fraternity boycotted the bench to barring the CJ Rana from entering his office. The Supreme Court justices then have decided to implement a lottery system effective from December 1 in an effort to put an end to the long-standing tradition of the head of the judiciary assigning the cases.

The Chief Justice, as presiding officer of the Court is responsible for administration of justice and hearing cases. Chief Justice Cholendra Shamsher did not perform either of his constitutional responsibilities for about three months but held office until 13 February-until an impeachment motion was registered against him.

Rana is the second Chief Justice after former Chief Justice Sushila Karki to face an impeachment motion in the parliament. Both accused of subverting the separation of power doctrine as also acting in violation of the Principles of Natural Justice. It is pertinent to note that, unlike Rana, Karki’s gained support from the Judicial and constitutional experts. The allegation and remarks made against her were criticised by the legal fraternity and it was further claimed that the ruling forces were “trying to intimidate the judiciary for not getting its approval on their wrongdoings.”

In the case of CJ Rana, despite the gravity of the situation, the political parties on both the ruling and opposition sides remained silent on the issue for about six months even when the judiciary was on the verge of collapse. The ruling parties were wary of interfering with the Supreme Court’s affairs because they claimed that they had no rights to intervene in the judiciary as they were bound by the doctrine of separation of powers.

Questions are now being raised as to why the impeachment motion against Chief Justice Rana was decided overnight. Critics claim that the impeachment has come with the wrong motive of constantly harassing the court, destabilizing it, postponing the election, and thirdly, passing the long due controversial MCC grant, and hence ought to be countered. CPN-UML Chairperson and parliamentary party leader KP Sharma Oli alleges that the impeachment filed by the ruling party against Chief Justice Rana is a conspiracy to prevent local elections. General Secretary of the Nepali Congress Gagan Thapa, on the other hand, opines that the impeachment motion against Chief Justice Rana was the right decision despite the delay.

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