In less than 72 hours since his appointment as industry minister, Gajendra Hamal resigned on Sunday morning, saying there was unwanted controversy over him. Hamal, a district level leader of the Nepali Congress, was appointed by Prime Minister Sher Bahadur Deuba on Friday. There was quite an uproar, firstly because he is not a parliamentarian and secondly, he was appointed at the behest of Chief Justice Cholendra Shumsher Rana. Hamal is a close relative of Rana.
A press note released by Deuba’s private secretariat on Sunday morning stated that Hamal resigned as requested by the prime minister after questions were raised over his appointment.
Hamal’s appointment—and resignation—put a spotlight on Deuba and Rana, who are alleged to have worked in cahoots, thereby trampling upon the principle of separation of powers as the two lead key state organs, the executive and the judiciary.
Political analysts say Hamal’s appointment, however, shows the rot spreads wide and runs deep.
“Hamal’s appointment is just the tip of the iceberg,” said Rajendra Maharjan, a political commentator, author and columnist for Post’s sister paper Kantipur. “This is just one more example of how our institutions have decayed over the years.”
Even though Hamal resigned on Sunday morning, questions remain how the chief justice dared to seek a share in the Cabinet and why the executive was under pressure to oblige.
Political analysts and legal experts say it would be wrong to define Nepal’s political culture based solely on the Hamal incident. According to them, the recent appointment, in agreement between the judiciary and the executive, is a continuation of what has been happening for quite some time in Nepal.
People in power in Nepal for long have not followed the rule of law; they have rather invested more time in using loopholes in law.
The ruling coalition made up of the Nepali Congress, the Communist Party of Nepal (Maoist Centre), the CPN (Unified Socialist) and the Janata Samajbadi Party was justifying Hamal’s appointment saying the constitution allows the prime minister to induct any non-parliamentarian into the Cabinet.
But the question is whether Deuba indeed needed Hamal in his Cabinet and whether the constitution indeed envisaged the provision so as to pave the way for the chief of the judiciary to have a say in the Council of Ministers.
“Those in power in Nepal have a tendency to ignore legal, constitutional and moral boundaries when it comes to their interests,” said Bipin Adhikari, a former dean at Kathmandu University School of Law. “Hamal’s appointment is yet another episode of this trend.”
Though Hamal’s appointment seems to have exposed how the executive and the judiciary are working hand in glove, this trend has been working fine for people in power for quite a long time. An internal report prepared by a Supreme Court justice also has suggested that corruption is rife in the judiciary.
That the justices in the Supreme Court are appointed under certain parties’ “quotas” has become so apparent that it has become a norm. In such a situation, observers say, it has become difficult to identify “who belongs to who” and “who is working on whose behalf.”
Justices’ appointment in the Supreme Court itself has been so heavily politicised that judicial independence has come into question. About a decade or so ago, the media reported that a group of justices had reached the CPN-UML headquarters in Balkhu to “thank the party leadership” for appointing them.
Appointments under political quotas have become a norm in Nepal. Constitutional and ambassadorial appointments based on parties’ recommendations have been taking place ever since democracy was restored in 1990.
Observers say the trend is so prevalent that it appears to have become the norm, which in a country that follows rule of law should be vehemently questioned and opposed.
“Even if Rana had made the recommendation, Deuba must have warned him that an impeachment motion could be registered against him if he tried to influence the executive,” said Adhikari, the law professor. “But instead of questioning the judiciary chief, Deuba and his partners obliged.”
Some argue that Rana’s aspirations had risen long ago. Rana reportedly got shares in appointments in different constitutional bodies during the erstwhile KP Sharma Oli government. He readily attended the meeting of the Constitutional Council which was called after a revision in the Constitutional Council (Functions, Duties and Procedures) Act, 2010, through an ordinance in December last year. When he participated in the second meeting of the council on May 4, three petitions were sub judice in the Supreme Court against the ordinance and recommendations made as per the ordinance.
The two meetings of the council made 58 nominations for appointments to 12 constitutional bodies and 52 of them got appointed.
Rana would have thought if he got a share in the constitutional bodies why not demand one in the government also, many say.
“We have incidents where parties have got shares in the judiciary by appointing their cadres as judges. The court is now seeking its share in the executive,” said Maharjan. “This is bound to happen when personal decisions matter over rules and laws.”
The chief justice-led Judicial Council has the authority to nominate justices and judges in three tiers of court. Over the years the parties in power have “installed” their people in the courts.
Maharjan said appointing Rana’s man as minister gives room to suspect that the ruling alliance wants undue favour from the Supreme Court.
The Constitutional Bench led by Rana on July 12 had restored the House of Representatives dissolved by Oli and ordered Deuba’s appointment as prime minister. Instead of taking the decision as a regular work of the judiciary, Rana was hailed as the savior of the constitution.
“Directing the President’s Office to appoint Deuba as prime minister within 24 hours was a serious case of judicial activism,” Tara Nath Ranabhat, a former Speaker, told the Post. “The decision undermined Parliament’s supremacy. It’s the Parliament that elects and appoints a prime minister, not a court. The court dikat was never criticised, hence we are in a situation where the court is dictating.”
The judiciary is the ultimate arbiter of the constitution and its decisions and verdicts in itself are laws. But when the court starts dictating and taking control of state affairs, it’s unfortunate, say observers.
Even when some leaders of the Nepali Congress, to which Hamal belongs, were expressing reservations about this appointment, Pushpa Kamal Dahal, chair of the Maoist Centre which is a key coalition partner in the Deuba government, was defending the appointment. Insiders say rather than Deuba, it was Dahal who wanted Hamal in the Cabinet because he had “given a word”.
Politicians in the ruling alliance say Hamal’s appointment may have received a lot of media attention and criticism, but this is just the continuation of an ill-practice in Nepal.
“We established a new political system through a long struggle but we couldn’t get the leadership to carry this forward,” Narayan Kaji Shrestha, a senior leader of the Maoist Centre, told the Post. “The country couldn’t get the leadership which could act as per the changed context. This latest episode just exposed the weakness of our leadership.”
