The recent appointments of five justices to the Supreme Court and 18 judges to the High Court display the extent to which our ‘democratic’ system has broken down.
The media narrated how the government, the chief justice and the leader of the opposition colluded, resulting in the appointments of loyal cronies and relatives of political leaders and the chief justice. Some of these appointees have displayed lack of character and capacity in the past and were previously considered unqualified for appointment, even to the lower courts. Similarly, the recent election of the Nepal Bar Association shows the politicisation of the civil society body. As former Speaker and eminent constitutional lawyer, Daman Nath Dhungana, said, the politicisation of the Bar Association weakens both the justice system and civil society.
It has been a while since the Nepali people lost the judiciary to corrupt politicians. It has now lost track of its independence, character, and capacity to deliver justice, posing serious challenges to the principles of separation of powers and the rule of law.
Much more dangerous than the failing of the judiciary, however, is the fact that it has become a weapon in the hands of a few individuals who control a system of kleptocracy and political patrimony.
The third branch, like many other core state legal institutions, is transitioning from a mechanism of law and justice to a mechanism of impunity and political control. The only respite is that the special hearing committee of the parliament is yet to approve the appointments to the Supreme Court. However, given past practices, we cannot expect much from parliamnetary hearings.
Fall of the judiciary
The judiciary has always been at the centre of the conflict of interests between the market, the people and the state. Their respective interests influence outcomes through political influence, financial transactions, and procedural manipulations. In recent years, the media has reported several incidents where the court has failed to protect public interests. For example, the decisions of Chief Justice Gopal Parajuli provided more than Rs61 billion in tax rebates to multiple companies implicated in fake tax stickers. Similarly, Justice Deepak Raj Joshi facilitated Ajaya Raj Sumargi’s attempt to remove money from his bank accounts, which were frozen due to evidence of money laundering. That decision was overturned two weeks later, with the Supreme Court asking the banks to return the money to his accounts.
The recent cases of CK Raut, who was leading a secessionist movement, and Resham Chaudhary, who was leading the Tharuhat movement, indicate sinister working relations between the judiciary and the executive.
The politicisation of the judiciary has led to the erosion of public trust and growth of impunity. Given the influence of the Bar Association and the political parties, there is a tendency to appoint judges who are close to the ruling political parties. In return, the political parties expect the chief justice to protect them and assign judges favourable to their cases.
Political leaders directly undermine judicial independence by applying political pressure and threats. Former justices, including former Chief Justice Sushila Karki, have gone on record explaining how corrupt politicians have invaded the judiciary by playing with appointments.
Emerging networks of theft
The most sinister threat to Nepal’s democracy is the emergence of a kleptocracy which has blended in with the patronage system of politics. While kleptocracy is a system of corruption constituting of horizontal and vertical networks of extraction and impunity, the patronage system of politics allows a handful of leaders to accumulate power and centralise decision-making, by violating democratic norms and rule of law.
This system, in order to sustain, needs to protect the network and its actors from core state legal institutions. The leaders of the kleptocracy, therefore, co-opt and weaponise core state legal institutions to protect its members from the law as well as from political opponents.
In private conversations, senior political leaders have begun to speak of how the government has exerted influence over institutions like the National Investigation Department (NID), Commission for the Investigation of Abuse of Authority (CIAA) and Department of Money Laundering Investigation (DMLI) to surveil and control the opposition. Nepal’s recent history and current affairs show that international actors play a significant role in both providing legitimacy to internal actors and promoting impunity in the country.
While idealist principles talk about non-interference, rule of law, positive-sum relations, and human rights, realist politics encourages zero-sum relations, avoidance of issues like corruption and partnership with actors who flout principles of democracy and violate rule of law.
In a country like Nepal, where the leaders accumulate power and wealth by flouting principles of democracy and violating the rule of law, good policies may not be good politics. It is, therefore, in the interests of the public and party workers to become more vocal about internal party democracy, rule of law and separation of powers. Protecting the autonomy of Parliament and core-state legal institutions should be the first step in this direction.
Khanal is a research director at the Centre for Social Inclusion and Federalism.
This article first appeared in The Kathmandu Post on April 8, 2019.