Sunday, 24 October, 2021
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OPINION

CJ Under Public Scrutiny



Narayan Upadhyay

The raging controversy over the appointment of the Minister for Industry, Commerce and Supply has shown no sign of ebbing even when the minister quit after only three days in office. Minister Gajendra Bahadur Hamal's hurried departure has only reinforced the allegations against the Chief Justice (CJ), who must have felt the heat once the issue of a controversial appointment came out in the open. Hamal's ministerial assignment ignited widespread disparagement against CJ Cholendra Shumsher Rana and the government, both of whom were under enormous pressure to justify the appointment, allegedly made on the recommendation of the CJ.

Many leaders of the ruling alliance, including a few Nepali Congress (NC) leaders, struggled to allay the simmering indignation, arguing Hamal was installed on the NC quota. But the media, lawyers, leaders cutting across party lines, civil society representatives and many others did not buy that argument and upped their ante against the CJ. They argued that the questionable step of selecting a person who is a relative of the sitting CJ had compromised democratic values and subverted the universally accepted principle of the separation of powers.

Why did the ruling alliance feel an urgency to choose a non-parliamentarian as a minister even when there was strong lobbying from their parliamentarians to be appointed as ministers? Analysts maintain that the alliance partners that comprise the Nepali Congress, the Maoist Centre and NCP- Unified Socialist had agreed on the name of Hamal as a minister because the CJ allegedly sought one of his acquaintances in the cabinet. Hamal, who hails from Nepalgunj and is the Congress leader of Banke district, is said to be the brother-in-law of the CJ.

Many correlated Hamal’s designation as a minister with the CJ’s 'desire' to have his stake in the government following the reinstatement of the parliament, dissolved twice by the erstwhile Prime Minister KP Sharma Oli. Following the resurrection of the dissolved House, the five-party alliance was successful in toppling Oli's government and replacing it with its own under the leadership of Congress Chief Sher Bahadur Deuba.
Rumours

After talks on cabinet expansion started, the capital's grapevine was abuzz with rumours that there would be a minister in the Deuba cabinet representing the CJ, which turned true after the non-parliamentarian Hamal was catapulted to the post of a minister. Analysts believe the CJ has had an edge over the ruling alliance as many cases against the Speaker, alliance partner NCP - Unified Socialist and cases related to the Lalita Niwas Land Scam against former prime ministers, Madhav Kumar Nepal and Dr. Baburam Bhattarai, lying on his table.

Earlier, when the issue came to the fore and media and lawyers started articulating their concerns against such a piece of news, the Supreme Court denounced it, dubbing it baseless because the CJ had sought none such appointment as brought up in the news. The unexpected turn of events saw the ruling alliance at a receiving end from several quarters. Nepali media, lawyers, leaders and the common public termed the appointment as an affront to independent judiciary and asked the government to revoke the minister's appointment.

They also warned that the CJ would be taken to task for 'his recommendation that has only impugned the inviolability of judiciary, undermined constitutionalism and disregarded democratic values. 

The minister's withdrawal that came following mounting pressure has not come at a better time. Because his appointment, which came as part of the CJ seeking his share in the cabinet, threatened to defile judiciary and brought into question one of the fundamental principles of democracy that states the three pillars of democracy - the executive, the legislature and judiciary - must work independently as an instrument of maintaining check and balance over each other.

There must not be any overlapping of power among these institutions. But Hamal's appointment cast a shadow over this time-honoured principle.
The latest episode has raised the apprehension of those who have a deep belief in the judiciary's sanctity as a strong constitutional pillar. They feared that Hamal's appointment, allegedly on CJ's recommendations, would open the floodgates.

However, such a situation may not come to haunt the nation, if media, the fourth estate of democracy, civil society and other concerns keep a close vigil on any misadventure from the chiefs of constitutional organs.

When the constitutional bench, headed by the CJ, reinstated the dissolved House by terming the dissolution unconstitutional, many in the country had applauded the CJ and his team of justices for making the historic judgement.  However, the same media, lawyers and civil society members went up in arms against the CJ for his 'unconstitutional and undemocratic' step of seeking a share in the government that turned true after the recent expansion of the cabinet. 

Lesson

However, speaking ill about the government and prime minister over the appointment is not wholly justifiable. All senior leaders of the ruling alliance are equally responsible and must endure public displeasure over the nomination of a non-parliamentarian. They should not have buckled under CJ's demand. The present government, which came after dislodging the authoritative Oli, does not have any luxury of engaging in acts that give rise to public resentment.

The recent episode in which the controversial appointment was made should serve as a lesson for all those who are part of the important democratic institutions. They must function within their jurisdiction, as any trespassing of assigned authority may prove catastrophic to any chief of these institutions. In modern days, they should not forget that the media and civil society could work as major yardsticks to bring them to full public gaze for whatever mistakes they commit and then make them pay the price for any of their missteps.  

(Upadhyay is managing editor of this daily. nara.upadhyay@gmail.com)