Conflict in Judiciary Alleged Due to Government's Authoritarian Nature

Kathmandu. Opposition parties including the main opposition have accused the government of increasing conflict in the judiciary due to its authoritarian character.

They allege that the judiciary has become divided due to the government led by senior Rastriya Swatantra Party (RSP) leader Balendra (Balen) Shah moving towards authoritarianism. After the Constitutional Council meeting on Jestha 10, the judiciary has been divided as the fourth-ranked judge Dr. Manoj Kumar Sharma was recommended for the future Chief Justice, leaving aside the senior-most acting Chief Justice Sapana Pradhan Malla.

On the occasion of Law Day on Jestha 12, acting Chief Justice Malla made a strong comment targeting the government. Her statement has led to analysis that the conflict between the executive and the judiciary has increased. Acting Chief Justice Malla had said, 'Self-serving actions that kill the law and legal traditions also give a glimpse of autocracy. While tampering with the law in the name of justification may be natural for arbitrary rulers, it is unbearable for the rule of law.'

While Malla's public statement stirred up national politics, RSP Chairman Rabi Lamichhane responded. While training MPs on Jestha 14, Lamichhane warned that if he was angry about the violation of law and hierarchy, his neck was still at the Supreme Court, so he could use weapons. 'If you talk about me, my neck is still there. If you are that angry, use your weapons. I have handed over my neck. Otherwise, the dignity and prestige of the judiciary should not be made a street issue,' Lamichhane said.

Meanwhile, opposition parties were demanding answers from the Prime Minister on questions raised by MPs regarding the ordinance issue, the recommendation of the Chief Justice, and the government's policy and programs. The absence of the Prime Minister in parliament indicates that the government is trying to move towards autocracy, said Pramesh Hamal, a leader of the Nepali Communist Party. He stated that the Prime Minister should play a role of cooperation and facilitation to maintain control and balance between the three organs of the state: executive, legislature, and judiciary, according to the separation of powers.

'It is not good for conflict to arise between the major organs of the state. Balance and control of power are necessary. To prevent conflict between these three organs from increasing, the Prime Minister, who leads the executive, must play a facilitating role,' Hamal told Ratopati. 'However, bringing an ordinance related to the Constitutional Council by bypassing parliament and the Prime Minister not attending parliament indicates that the government is moving towards arbitrariness. This is not a good sign for democracy.'

Ain Mahar, Deputy Leader of the CPN-UML Parliamentary Party, also accused the judiciary of being troubled by the government. Mahar stated that the government is moving forward with the objective of making the role of the judiciary, which is a strong organ of the state, ineffective. 'The current government shows the arrogance of a two-thirds majority. In fact, the judiciary has been troubled for the first time in history due to the government. The government also wants the judiciary to become ineffective and lose public trust. The government is working to weaken the judiciary, which is a strong institution, and demoralize the judges,' he said.

He further accused the government of moving towards autocratic authoritarianism rather than separation of powers, as even MPs from the ruling party are insulting the judiciary.

Lawyers have protested the government's recommendation of a junior judge for Chief Justice, breaking the established laws and traditions of the judiciary. Senior Advocate Dinesh Tripathi had filed a writ petition in the Supreme Court against the recommendation of the Constitutional Council. However, the court administration rejected Tripathi's writ. The Supreme Court administration did not register another petition filed by him against the rejection and a writ filed by advocate Dr. Premraj Silwal against the ordinance related to the Constitutional Council, which led acting Chief Justice Malla to express strong dissatisfaction. Accusing that the writ was not registered under the instruction of proposed Chief Justice Sharma, Malla ordered to register all petitions immediately.

Such orders, rarely seen in the judiciary, have caused a stir in political circles.

In her written order, Malla stated, 'Halting a petition that has come to be registered in the court in accordance with the law and procedure prescribed by law appears to be an obstruction to the path of justice and a behavior and effort to increase distrust in the public's faith in the court.'

Taking exception to the written order, RSP MPs Samiksha Baskota and Yagyaman Neupane objected in parliament. On Monday, Baskota challenged in parliament, 'If you want to do politics, take off your coat.' 'She said on Law Day that the fight is still on publicly. If the fight is still on with the government, I want to convey to the justice from here, if you want to do politics, take off your coat and come, we are ready,' she warned Malla.

Another advocate and RSP MP, Neupane, pointing to Malla's order, accused the judiciary of working with a conflict of interest. Raising questions, he said, 'Acting Chief Justice Sapana Pradhan Malla's order is all over the media. Is this order joint? Is it single? Is it a full bench? Which article of the constitution guided this bench?'

The Nepal Bar Association has already announced protest programs expressing objection to the working style of the court administration and the statements made by RSP MPs.

The main opposition Nepali Congress has argued that the ordinance related to the Constitutional Council brought by the government by bypassing parliament is wrong, and the executive's role is contrary to the separation of powers. Chief Whip Basana Thapa said that the attempt to place the House of Representatives Regulations above the constitution and the Prime Minister not being accountable to parliament do not send a good signal.

'It seems that the ruling party is trying to do politics in the judiciary by breaking established norms and traditions. Conflict has been created in the judiciary due to the government,' Thapa said. 'The government's intention in this will become clear. However, recent activities show that the government is trying to place itself above the constitution. This cannot be considered a good sign for the constitution and democracy.'

The special parliamentary committee on Tuesday concluded the hearing on the complaint against proposed Chief Justice Sharma. The committee had called for a 10-day period to file complaints against Sharma on Jestha 11. Sixteen complaints were filed against him. However, opposition parties alleged that the committee chairman hastily concluded the hearing without adequately studying the future plans of the proposed Chief Justice and the complaints received. And Chairman Bodh Narayan Shrestha informed that Dr. Sharma was approved as Chief Justice by the special parliamentary hearing committee today.

Opposition parties questioned the government's intentions when the Supreme Court administration refused to register the petition and the hearing committee recommended Sharma as Chief Justice through a shortcut. However, since the ruling RSP has a majority in the 15-member special committee, which is a joint committee of the House of Representatives and the National Assembly, there is no problem for approval.

The ordinance issued by the Office of the President on Jestha 8 states that four out of the six-member council are sufficient and decisions can be made by considering three as a majority. The council will include the Prime Minister as chairman, the Chairman of the National Assembly, the Speaker of the House of Representatives, the Deputy Speaker, the leader of the main opposition party, and the Chief Justice as members.

The provision allows the Prime Minister to make decisions by exercising 'veto power' even with only three out of the six members. The President, Ram Chandra Paudel, had sent back the ordinance recommended by the government for the first time. The government sent it back as it was, without amendment, and it was issued by the Office of the President on Jestha 8.