It’s October 29, 2021, and you’re reading Off the Record, the weekly newsletter from The Record. We are an independent, ad-free, digital news publication out of Kathmandu, Nepal.
I’m Pranaya Rana, editor of The Record, and in this newsletter, we’ll stop, take a deep breath, and dive into one singular issue that defined the past week.
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Good morning, good afternoon, and good evening from Kathmandu in the midst of another scandal. This past week, newspaper front pages have been filled with news of the judiciary, particularly Chief Justice Cholendra SJB Rana. The highest judicial authority in the country is facing criticism from all quarters and is under heavy pressure to resign. Rana, however, has stood his ground. I’ll get into the details in our deep dive, down below.
But before that, let’s take a recap of all that’s happened this past week.
Fears of a Covid explosion after Dashain have largely turned out to be unfounded, for the time being at least. While there was a small climb in daily cases immediately after the holidays, that rise did not go much further and has mostly stabilized. On Friday, there were 490 daily cases over the past 24 hours, 527 on Thursday, and 582 on Wednesday.
What remains concerning is that there have been an average of 8-10 deaths every day and that is still not a good sign. The daily average death rate has fallen quite sharply from a massive of peak around 200 deaths in mid-May, thanks largely to vaccinations. Once more of the population is vaccinated, this rate will likely fall further.
Nepal received more vaccines this past week, with 100,620 doses of the Pfizer vaccine coming in from the US via COVAX. These doses will be used to vaccinate the immuno-compromised and children above 12 years of age, according to the Health Ministry.
Nepal also received 1.2 million doses of the Verocell vaccine, purchased via COVAX’s cost-sharing mechanism, on Wednesday. The shipment is part of 5.9 million Verocell doses purchased by Nepal with a $165 million loan from the Asian Development Bank. Nepal has also purchased 4 million doses of the Moderna vaccine, which is due to arrive by December.
More vaccines are incoming, with 201,600 doses of AstraZeneca vaccine, donated by the Maldives, due to arrive on Saturday. The Kathmandu Post also reported that both Switzerland and Canada have offered around 100,000 vaccines to Nepal.
As of Friday, Nepal’s fully vaccinated rate was 23 percent with 28.5 percent having received a single dose.
On to national politics, where not much is happening. With most of the country fixated on the controversy surrounding the chief justice, the political parties, for once, have received a breather. None of the parties appear too keen on taking sides over the chief justice issue. The CPN-UML is resting up after its general convention, where KP Sharma Oli emerged stronger than ever. The Nepali Congress, on the other hand, is still attempting to finalize dates for its general convention. The Maoists and the Janata Samajbadi Party, also part of the ruling coalition, have both largely retreated behind the Congress.
Power-sharing is still ongoing, with the Deputy Speaker of the House still vacant. There has been some movement in the provinces with Rajendra Pandey of the CPN (Unified Socialist) replacing the UML’s Asta Laxmi Shakya as Chief Minister of Bagmati Province. This change was a long time coming as Pandey is a member of Madhav Kumar Nepal’s new party, which split from Oli’s UML to join the Congress coalition. With Oli out of power, the changing of the guard was inevitable.
Speaking of changing of the guard, Prime Minister Sher Bahadur Deuba has finally decided on ambassadors for three of the most consequential friendly countries. Former National Planning Commission vice-chair and former ambassador to the United States Shankar Sharma will be Nepal’s ambassador to India; Sridhar Khatri, a professor of political science who’s led a number of think tanks, will be ambassador to the United States; and Gyan Chandra Acharya, former under-secretary-general at the United Nations, will be ambassador to the United Kingdom.
All of these names are well-known in Nepal’s foreign relations so there is hope that they will discharge their duties well, especially since their postings are among the most important (and lucrative). But 20 more ambassadorial postings remain vacant, as Deuba had recalled all diplomats appointed by the Oli administration. These posts will likely to doled out to party loyalists as has been the practice in the past.
But that’s politics as usual in Nepal. Everything is a big share-and-share alike for the top politicians. And that serves as a good segue as any into the current drama surrounding the chief justice. Let’s get right into it.
The deep dive: Chief justice in the dock
Chief Justice Cholendra SJB Rana (Photo: RSS)
Although Rana has been chief justice of the Supreme Court since January 2019, he only really came to national attention following former prime minister KP Sharma Oli’s attempts to dissolve the federal Parliament and declare snap elections.
In December last year, then prime minister Oli had dissolved the House of Representatives after in-fighting within his Nepal Communist Party. President Bidya Bhandari had endorsed Oli’s recommendation and declared elections for the spring.
But in February this year, a five-member Constitutional Bench — consisting of Chief Justice Rana, along with justices Sapana Pradhan Malla, Anil Kumar Sinha, Bishwambhar Shrestha, and Tej Bahadur KC — reinstated the House, citing Oli’s decision as unconstitutional.
Again, in May, President Bhandari dissolved the House on the grounds that neither Oli nor aspirant prime minister Sher Bahadur Deuba had sufficient ground to lead the executive. She once again declared fresh elections.
But again, the Constitutional Bench of the Supreme Court — led again by Chief Justice Rana, with justices Meera Khadka, Deepak Kumar Karki, Ishwar Khatiwada, and Ananda Mohan Bhattarai — overturned President Bhandari’s decision and reinstated the House. But this time, the court went a step further, ordering that Deuba of the Nepali Congress be appointed prime minister as Oli had failed the vote of confidence and needed to step down.
It was these two landmark decisions, hailed at the time as ensuring the protection of democracy and rule of law — that brought Chief Justice Rana into the national consciousness. At that time, he was seen as the last bastion against Oli’s overreach.
But as quickly as he rose, so did he fall.
In late September/early October, various news media reported that Chief Justice Rana was lobbying for a “share” in the Cabinet. Rana reportedly wanted Gajendra Hamal, a little-known Nepali Congress member from the Far West and Rana’s brother-in-law from his first marriage, to be appointed minister. Rana rubbished the reports, even issuing a public statement through the Supreme Court. But Hamal was duly appointed Minister for Industry, Commerce and Supplies alongside Deuba’s expansion of the Cabinet.
The appointment was suspect, to say the least. Very few people had even heard of Hamal before the controversy. He was not, nor had ever been, a Member of Parliament. He was reportedly not even very active in the Congress party and was at best a district-level leader. His only claim to a ministerial berth, especially when many politicians in the Congress, UML (Unified Socialist), Maoists, and Janata Samajbadi, were vying for posts. The ministry of industry, commerce and supplies too is not a minor one; as the federal ministry in charge of businesses and industries, whoever leads it has ample opportunity for kickbacks from large business houses, making it a very sought-after ministry among the less scrupulous.
So when he was appointed, everyone naturally believed that someone powerful lobbied for him, and in this case, there was ample room to believe that that someone might have been Chief Justice Rana.
Hamal resigned a few days later due to the controversy but the public at large did not forget Rana’s alleged role. Lawyers and public figures began to raise questions about Rana’s role and how his alleged actions had brought disrepute to the judiciary. With Rana now in the dock, his past actions began to be dug up.
There had been issues before with Rana’s decisions as the top judge in the country, but none had snowballed before. This time around, numerous controversial decisions began to be brought up as a cudgel against Rana.
For instance, Rana’s decision in July 2020 to commute the sentence of former Deputy Inspector General of the Nepal Police Ranjan Koirala to eight-and-a-half years from 20 years. Koirala had been sentenced in 2012 for the murder of his wife Gita Dhakal. Coincidentally, the new eight-and-a-half-year sentence was just the amount of time that Koirala had already served, and so, he was set free.
Rana also faced criticism for his involvement in the Constitutional Council, a body of top officials that include the prime minister, speaker and deputy speaker, chair of the National Assembly, leader of the opposition, and the chief justice. The council makes appointments to vital constitutional bodies like the Commission for the Investigation of Abuse of Authority, the National Human Rights Commission, Public Service Commission, Election Commission, etc. In previous years, the council required all of the members to be present before it could make a decision but Oli, during his time as prime minister, had issued an ordinance that amended the laws to allow the council to take decisions on the basis of a majority. Numerous appointments were thus made in the presence of just Oli the prime minister, Ganesh Timilsena the National Assembly chair, and Rana the chief justice. Deuba, then leader of the opposition, Agni Sapkota, the speaker of the House had both boycotted the meetings. The deputy speaker position remains vacant to this day.
These appointments were challenged at the Supreme Court but the issue has ended up in a legal quagmire. Rana recused himself from the Constitutional Bench as he was party to the appointments but then a writ was filed demanding his presence on the bench. For now, all hearings on the issue have been stayed. But critics say that Rana should’ve moved the process forward as chief justice.
Many individuals and organizations have now arrayed against Rana. These include the Nepal Bar Association, Supreme Court Bar Association, his colleagues at the Supreme Court, and even former chief justices. A majority of justices at the Supreme Court have decided to stop hearing cases as long as Rana doesn’t resign while the bar associations have pledged not to argue cases. Chief Justice Rana, however, has maintained that he will not resign. In a show of defiance, Rana alone is hearing cases through a single bench.
In an interview with Rishi Dhamala, Rana said that he is ready to face an impeachment motion if necessary but he will not step down just because some are calling for his resignation. If Rana wished to speak to the public at large, he would’ve chosen a broadsheet daily or a televised interview on a network like Kantipur. But his choice to speak to Dhamala is telling. Dhamala is a political creature. His interviews and posturing is largely for an audience composed of political party members. This shows that Rana is speaking to the political parties, perhaps because he believes that they are largely behind the calls for his resignation. Although the parties have not made any public statements and appear reluctant to take sides, there is no doubt that there have been political shenanigans behind the scenes, as a crisis of such magnitude could not have progressed without a political party push.
I am not sure how this controversy is going to progress. Rana appears adamant and so do his opponents. The deadlock means that justice delivery will be significantly hampered and Nepal’s Supreme Court already has a backlog of hundreds of cases. Perhaps the sitting Supreme Court justices and the bar associations should not hold the public ransom in order to place pressure on Rana. At the end of the day, Rana doesn’t suffer; the public does.
The legal path is to impeach the chief justice and that is not likely. None of the parties in Parliament have the numbers to pass the motion. Only the UML has enough members to table an impeachment motion, which requires one-fourth support. Actually passing the motion requires a full two-thirds majority and that is very unlikely to muster. But even Oli, kicked out so unceremoniously by Rana’s decision, appears unwilling to pursue a vendetta against the chief justice.
In any case, the House is no longer in session. Prime Minister Deuba recommended prorogation on Friday morning and without a House in session, there can be no motion of impeachment. For the time being, it looks like Chief Justice Rana will stay.
Personally, I am conflicted over this issue. While Rana does have skeletons in his closet, is calling for his resignation and refusing to impart justice the right way? When ordinary citizens do it, it’s because most people don’t have access to other means of protest. But those protesting at this moment are Supreme Court judges and accomplished lawyers. The law should be the lifeblood of these people. Should they not be attempting to go by the book, no matter how difficult?
In the end, it is unfortunate that the judiciary has landed in such controversy. (It is even more embarrassing than aging lawyers have already come to blows over this issue.) More so than the other organs of the state, the judiciary is the one that must not just be impartial and committed to justice but also be perceived as such by the broader public. Justice is a tenuous concept; it is something we as a society decide on and thus, it is based largely on opinion, established practice, and adherence to principles of equality and fairness.
The judiciary cannot be seen to be compromised.
On The Record this week:
Shrijan Pandey on gambling addictions during the festive season
Warren Ward on death, meaning, and the good life
Akhilesh Upadhyay provides writing advice for both aspiring and stagnating journalists
The Record on the unseasonal post-monsoon rainfall and its consequences
Happenings this week:
Saturday - A 40-year-old Canadian man was arrested by police from Lakeside, Pokhara on child molestation charges.
Sunday - Chief Justice Cholendra SJB Rana held a meeting with lawyers from the Nepal Bar Association to discuss the building controversy while 15 justices of the Supreme Court held their own meeting to decide on how to proceed regarding the chief justice.
Monday - Nepal received 100,620 doses of the Pfizer-BioNTech vaccine as a donation from the United States via COVAX.
Tuesday - Chudamanu Uprety, alias ‘Gorey’, was sentenced to 10 additional years in prison for the abduction and hostage-taking of Sanam Shakya. On October 5, the Morang District Court had sentenced Uprety, along with five others, to life imprisonment, for his role in the smuggling of 33 kilos of gold via Tribhuvan International Airport and the subsequent murder of Shakya, who was carrying the gold through customs. Uprety and the others abducted, tortured and murdered Shakya after the gold went missing.
Wednesday - Nepal received 1.2 million doses of the Verocell vaccine, purchased via COVAX’s cost-sharing mechanism. The shipment is part of 5.9 million Verocell doses purchased by Nepal with a $165 million loan from the Asian Development Bank. Nepal has also purchased 4 million doses of the Moderna vaccine, which is due to arrive by December.
Thursday - The Sher Bahadur Deuba Cabinet recommended Shankar Sharma, Sridhar Khatri, and Gyan Chandra Acharya as Nepal’s ambassadors to India, the United States, and the United Kingdom, respectively.
Friday - The Nepal-India Maitri Bus Sewa (Friendship Bus Service) that connects the two capitals of Kathmandu and Delhi over a 30-hour, 1,250-kilometer journey finally resumed after 20 months of suspension due to the Covid-19 pandemic.
Article of the week:
‘What led to the violence in Motipur that left four people dead?’ — Abha Lal reports on the violent clash between police and squatters on October 10, what led to the violence and all its broader contours.
That’s all for this week. Off the Record will be taking another break next week for Tihar. I know, it’s a bummer but fret not, I will be back in your inboxes on Friday, November 12. I shall see you then, in your emails, for the next edition of Off the Record.
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