Political Intervention – A Solution to Judicial Crisis?

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Chief Justice Cholendra Shumsher Rana got into a heated controversy after he allegedly demanded a share in Prime Minister Sher Bahadur Deuba’s Cabinet. He has been accused of seeking a ministerial berth for his brother-in-law, who was appointed as a minister on October 8. The controversy started when Gajendra Hamal, Chief Justice Rana’s brother-in-law, was appointed as one of the 18 new inductions for the Ministry of Industries, Commerce, and Civil Supplies. Since Hamal was not a member of the parliament, it was assumed 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 have put Chief Justice Rana and PM Deuba into the spotlight for disturbing the separation of power. In addition to that, the independence of the judiciary is also compromised when the chief of the judiciary seeks a stake in the executive body, while the political parties agree to give it to him. The cornerstone of a functional democracy is an independent judiciary, which guarantees that the branches of government operate within a system of checks and balances. However, this controversy has dismantled the separation of power questioning the independent judiciary.

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 have asked Chief Justice Rana for his resignation. Chief Justice Rana has rejected the allegation against him and has refused to resign. However, he is ready to go through an “impeachment motion” in the parliament, the only way provided in the Constitution to remove the Chief Justice. Chief Justice Rana’s position has raised the threat of judicial deadlock. The faction of lawyers has decided to boycott the Supreme Court affecting the court proceedings, while justices are busy holding meetings, which in turn has affected the hearing. The ongoing protest in the Supreme Court has affected the writ of habeas corpus which has violated the fundamental right of the people in detention. It is unethical for the justices to halt justice delivery.  Understanding the sensitivity of the issues, Justice Manoj Kumar Sharma told that, Chief Justice Rana has offered to hold talks with the justices to resolve the dispute and hinted that he is ready for a “graceful exit”. However, the lawyers and justices are suspicious that this could be a trick of Chief Justice Rana to drag the issue of his resignation by generating additional time period to cool down the ongoing tension in the Supreme Court.

Political Intervention and Impeachment

Despite the gravity of the situation, the political parties on both the ruling and opposition sides have so far been silent on the issue except for the former Prime Minister of Nepal, KP Sharma Oli. According to him, all five justices on the constitutional court including Chief Justice Rana, that overturned his order to dismiss the House of Representatives, were “politically motivated” and “must resign.” Political analysts are of the opinion that his statement has to do with his own personal interest considering the fact that he only questioned the five justices who pronounced judgment against him. Similarly, when questions were raised as to why the political parties are reluctant to speak about the ongoing judiciary crisis, political analysts and experts are of the opinion that, political parties appoint his/her party workers, without merit, in the institution created by constitutional bodies. Thus, to protect the party workers and to avoid added controversy, the best possible strategy is to be silent about the situation. The on-going controversy in the judiciary is an outcome of political meddling and flawed appointment processes. Such unethical practice is prevalent from the time of Panchayat. Therefore, the controversy has brought to light the practice of ‘bench buying’ in the Supreme Court.

Judiciary is one of the biggest and powerful instruments of democracy and the nation is extremely disappointed to see the idleness of political parties even when the judiciary is on the verge of being collapsed. But the major question is, whether the political intervention to this judicial crisis will bring out a possible solution or deteriorate the situation, considering the fact that executive body is responsible for this judicial fiasco.

Impeachment is the only possible intervention to this judicial crisis, as parliament is the only legitimate institution that can defenestrate the chief justice. But the prospect of parties to intervene in this matter is very unlikely as the government has prorogued the House and the political parties are divided on whether to impeach him or not. For instance, Justices, Nepal Bar Association, Supreme Court Bar Association, former chief justices and networks of judges want Chief Justice Rana to quit. Supporting this call are leaders from the ruling alliance—Nepali Congress, CPN (Maoist Center), CPN (Unified Socialist), Janata Samajbadi Party and Rastriya Janamorcha. Some political leaders say that it is up to the judiciary to make the call. Meanwhile, Nepal’s ruling party, the Nepali Congress, remains wary of interfering with the Supreme Court’s affairs as they do not have any rights to intervene in the judiciary. Nepali Congress Joint General Secretary, Prakash Sharan Mahat, said that “nature of the current dispute in the judiciary is such that the solution should be sought by the judiciary itself, not by the political leadership.” In the absence of consensus between the political parties, political intervention may add up more problems and differences than finding a solution. However, there are voices inside the ruling alliance pressing for a solution to the problem if the judiciary is unable to do so. Madhav Kumar Nepal, a senior ruling alliance leader and chairman of the CPN (Unified Socialist), ruled out the possibility of impeaching the chief justice Rana. The Nepali Congress and the Communist Party of Nepal (Maoist Centre), which are in power, do not appear to be interested in impeaching Chief Justice Rana. The CPN (Unified Socialist Party) and the Janata Samajbadi Party, two other coalition partners, are too tiny. Technically, the Congress and the Maoist Centre don’t have enough votes to bring an impeachment resolution. The major opposition CPN-UML is the only party with enough Member of the Parliaments to file an impeachment resolution.

In order for an impeachment motion to be registered in the parliament, it must be signed by at least one-fourth of the total number of legislators. As soon as the motion is submitted, the chief justice is automatically suspended. The move to impeach the chief justice, however, must be approved by a two-thirds majority. Due to the composition of the House, a resolution cannot be enacted by a two-thirds majority unless all parties vote in favor.  It is true that political parties should find the way out of the judicial crisis, however, lack of consensus among the political party at the current crisis may prolong the judicial deadlock. Nevertheless, the question remains, if the ruling coalition wants the impeachment and if so, will this impeachment be the remedy for all ills afflicting the country’s Supreme Court?

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