Narayan Upadhyay

Citizens of any democratic nation hold their judiciary in high esteem. Valid reasons support such belief. The judiciary is the ultimate refuge for citizens as it secures and protects their rights as consecrated in the constitution. To deliver justice to citizens, the judiciary needs to perform its duties independently. Giving justice to the oppressed and punishing criminals by applying laws is one of the primary functions of the judiciary, which is a powerful organ of a democratic state.

Another key service of the judiciary is to maintain checks and balances on powers exercised by power holders and safeguard the people and the state against the excesses perpetrated by two other organs of a democratic government - the Legislative and the Executive. A nation cannot remain a democratic one if it lacks an autonomous judiciary, which acts as the guardian of the rule of law and justice.

Quagmire of controversy
Given the current controversy surrounding our judiciary, questions have been raised regarding its capability to deliver justice, perform duties faithfully, and allow judges to perform tasks of issuing verdicts on judicial cases without fear or favour. Never has our judiciary fallen as deep into the quagmire of controversy as it has now. The current controversy surrounding the Chief Justice has brought the Supreme Court, the vital bulwark of our judiciary, into disrepute and has left a big question on its sanctity and exalted position as one of three fundamental organs of the state.

As CJ Cholendra Shumsher Rana stands accused of his engagement in acts undermining his major responsibilities, Supreme Court judges, several senior and junior lawyers and the Nepal Bar Association have taken a firm stand against him and pressing for his immediate ouster to keep 'the sanctity and dignity of the country's judiciary intact'. To pile pressure on the CJ, the agitated justices have kept themselves away from attending regular court hearings for several days now, an unprecedented event in the annals of Nepal's judiciary. However, he vowed not to give in to the pressure. He would not quit just because arguments against him took place in the streets. This has spawned a standoff that bruised integrity of our judiciary.

Detractors of the CJ berated him for vitiating the judiciary in recent times. He has been accused of claiming a share in the government by coercing to appoint his relative as a minister. The minister in question, however, had to resign later to save the CJ from falling into further controversy. Justices and lawyers rapped him for commuting the life sentence of former Senior Superintendent of the Armed Police Force Ranjan Koirala, already indicted in the gruesome killing of his wife.

For all the compliment it amassed for restoring the House of Representatives twice after former prime minister KP Sharma Oli dissolved it, the Supreme Court, under CJ Rana's tutelage, has come under the scanner for unsavoury incidents such as 'bench swapping', to fix the outcome of lawsuits. By handpicking justices of his liking for hearing cases in which the outcome has far-reaching implications, the CJ also attracted ire from legal experts and common citizens. 

Many allege Rana for violating the dignity of our legal system. Meanwhile, his role in the Constitutional Council during former PM Oli’s tenure only dented his image. He tried to engage himself in a hearing on lawsuits related to controversial appointments made by the Constitutional Council, of which he was a member. Here, many accuse him of overlooking a 'conflict of interest issue.' According to prevailing legal norms, he cannot preside over the trial of a case in which he is a party. 

The SC judges termed all these acts of CJ Rana a breach of his responsibility. They also upbraided the CJ for obliging them to hear lawsuits in which the CJ took 'special interests.' As the CJ-judges showdown has lingered, the top court has to deal with an unprecedented impasse. However, following increasing pressure, CJ Rana needs to find a graceful exit. Some SC insiders say he has asked some judges to sit for dialogue to shield him from any forceful ouster.

While the feud in the Supreme Court has played out to its fullest, what is depressing to note is that political parties are dilly-dallying to take their stance over the issue. In principle, it is the Legislative (the parliament and parliamentarians) and the Executive (the government) that must come forward to set the judiciary on the right path when the latter deviates from its constitutionally-warranted path or is involved in any anomaly that raises questions over its sanctity.

The ruling coalition and opposition parties appear reluctant to resolve the issue. Lately, top leaders have expressed conflicting remarks over the matter.  Some leaders say the judges of the Supreme Court should resolve the crisis in the judiciary, while CPN-Maoist Centre chairman Pushpa Kamal Dahal Prachanda expressed all parties should make a common stand on the issue before resolving it.  Leader Madhav Nepal has negated any call to impeach CJ stating that impeachment is out of the question now. 

Course correction
Without a doubt, the unsavoury incidents have shaken a common citizen's faith in the judiciary. Whenever people find them at receiving end from the hands of those subverting laws, they look up to our judiciary for justice. Our judiciary is in urgent need of course correction now.

Instances have proved whenever some powerful rulers go on committing excesses, our judiciary has invariably put a brake on such anomalies and aberrations. And when the person of CJ's stature, who has a strong responsibility to maintain the dignity of the judiciary, comes under scrutiny for acts that hint at his moral degradation and that threaten to further defile our judiciary, our parliamentarians have to protect it from such excesses. It is necessary to restore people's faith in the judiciary. The earlier, the better.

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