JUDICIARY Impeachment Politics

Following the registration of an impeachment motion in the House of Representatives by members of four ruling political parties, chief justice Cholendra Shumsher Rana has been out for now with a new senior justice acting as the chief justice. With an announcement of CPN-UML to register another impeachment motion against four other senior judges including the acting chief justice, the politics of impeachment has created the most unstable and unpredictable situation in the judiciary. Some political leaders and individuals may have gained and some others demoralized in the process, Nepal’s judiciary has lost over 7 decades of recognition as an apolitical and stable institution

Feb. 21, 2022, 1:37 p.m. Published in Magazine Issue: VOL. 15, No. 13, Feb.18, 2022 (Falgun 06,2078) Publisher and Editor: Keshab Prasad Poudel Online Register Number: DOI 584/074-75

Since the restoration of the House of Representatives eight months back and appointment of Sher Bahadur Deuba as the prime minister of a coalition government, lawyers representing four parties of the ruling alliance had started to press chief justice Rana, who was reported to have sided with PM Oli’s dissolution, to resign.

However, Rana took a stand against all hostile situations. The move against Rana intensified following the expansion of the cabinet by Deuba in September. The media reported that the PM appointed a minister on chief justice Rana’s pressure.

With this news, Nepal Bar Association and Supreme Court Bar Association announced agitation followed by the bench boycott by all the justices.

Although Nepal Bar Association and Supreme Court Bar Association, both organizations under the control of the ruling alliances, continued their protest despite resumption of court hearing following a nearly two months of showdown.

However, the ruling alliances, which were under pressure from their loyal lawyers, were quietly searching for the appropriate moment to register the impeachment motion against CJ Rana.

By registering the impeachment motion against Rana on 13 February, with support from a total of 98 lawmakers of NC, CPN (Maoist Centre) and CPN (Unified Socialist), the ruling alliances finally vacated the post of chief justice and paved the way for a new acting chief justice.

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With no political party having two thirds of majority to pass the impeachment motion in the House of Representatives, Rana will get a relief. However, he will retire during his expulsion given the current political stalemate in the country.

For the sake of a political gain, NC Parliamentary Party meeting drew a conclusion that the NC would also hold talks with other parties and request them to lend support in endorsing the impeachment motion filed against Chief Justice Rana.

Karki To Perform As Acting Chief Justice

Supreme Court’s senior-most justice Deepak Kumar Karki has been the Acting Chief Justice following the registration of the impeachment motion against Chief Justice Rana.

Lawmakers from the ruling parties went to the federal parliament secretariat, Singha Durbar, to file the motion of impeachment against Rana. This gave way to Karki to become the acting CJ naturally as the senior-most justice at the SC.

The impeachment proposed by Dev Prasad Gurung of the CPN (Maoist Centre), Dr Pushpa Bhusal of the Nepali Congress and Jeevanram Shrestha of CPN (Unified Socialist) was backed by Nepali Congress Dr Minendra Rijal and many other lawmakers.

With the registration of the impeachment motion against Chief Justice Cholendra Rana questioning his performance, he has not been allowed to discharge the duties.

The lawmakers from the ruling parties registered the motion of impeachment against CJ Rana in accordance with Article 101 of the Constitution.

As per the Constitutional provision, after the commencement of impeachment proceedings, the Chief Justice shall not be allowed to discharge the duties of his office. This is like suspensions from the office until the case is settled.

Article 101 (2) states one-fourth of the total members of the House of Representatives may move a motion of impeachment against the Chief Justice or a Judge of the Supreme Court, member of the Judicial Council, chief or official of a Constitutional Body on the ground of his or her failure to fulfill his or her duties of office because of serious violation of this Constitution and law, incompetence or misconduct or failure to discharge the duties of office honestly or serious violation of the code of conduct.

If the motion is passed by at least two-thirds majority of the total number of the members of the House of Representatives, the concerned person shall be relieved of his or her office.

The Constitution, however, guarantees a person charged with impeachment shall be provided with a reasonable opportunity to defend himself/herself.

The motion is proposed by CPN (Maoist Centre)’s Dev Prasad Gurung, Nepali Congress’s Dr Pushpa Bhusal and CPN (Unified Socialist)’s Jeevan Ram Shrestha and it is backed by 98 lawmakers including Dr Minendra Rijal.

Secretariat’s Joint Spokesperson Dashrath Dhamala said the motion will be presented before the Speaker and the Speaker will probably present it before the Business Advisory Committee for discussion and will proceed with further action.

History of Impeachment

This is not a first impeachment motion tabled in the parliament against the chief justice. Although there was no provision in the first interim constitution, the first chief justice of Supreme Court Hari Prasad Pradhan was dismissed by the King and later he was appointed again.

In 1995 CPN-UML registered an impeachment motion against Biswonath Upadhyaya for his decision of reinstating the House of Representatives. However, the motion was withdrawn later with no chances of success.

NC led by Sher Bahadur Deuba also registered the impeachment motion against then Chief Justice Sushila Karki. The motion was withdrawn later when the possibility of passing it looked unlikely.

Chief Justice Gopal Prasad Parajuli was removed under a letter by the secretary of Judicial Council. The justices of Supreme Court led by Rana forced Parajuli to accept the fate. Although it is against the constitution to remove chief justice by a secretary of Judicial Council, former CJ Parajuli was shown the door of exit.

In a similar way, acting chief justice Deepak Raj Josh was sent home by pressure of the justice led by Rana himself. Although Joshi was rejected by a hearing committee for chief justice, his colleagues including Rana rejected his plea to work for remaining tenure as second senior judge.

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Three Leaders Meet

With the firm public stand of main opposition party CPN-UML to vote against the motion and possible registration of impeachment motion against four senior justices of Supreme Court, a discussion was held between Prime Minister Sher Bahadur Deuba, CPN (Maoist Centre) Chairman Pushpa Kamal Dahal 'Prachanda' and CPN (Unified Socialist) Chairman Madhav Kumar Nepal at the Prime Minister's official residence in Baluwatar on February 15.

According to Prachanda's press coordinator Surya Kiran Sharma, the meeting discussed the impeachment motion against Chief Justice Rana.

"Chair Prachanda said that the meeting between the three top leaders focused on the impeachment motion against Chief Justice Rana," said press coordinator Sharma.

Following the filing of the impeachment motion against the Chief Justice, the ruling coalition has intensified the discussions.

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CPN-UML’s Threat

As the main opposition party CPN-UML is threatening to impeach four justices of the Supreme Court, who constitute the constitutional bench - Acting Chief Justice Deepak Kumar Karki, Meera Khadka, Ishwar Prasad Khatiwada, and Anand Mohan Bhattarai - Nepal’s judicial system is on an uncertain course.

When asked if the UML would carry out its threat of registering the impeachment motion against the four justices, a UML leader told New Spotlight that party lawmakers had submitted their signatures to party leadership which could be used 'for appropriate action at appropriate time'.

"We have made all kinds of preparations," the source said, adding that party Chair KP Shamra Oli told lawmakers that UML would not ignore repeated political attacks by opponents.

Oli, however, told party leaders that the party would avoid any knee-jerk reaction. Earlier, UML leaders had said if the ruling alliance sought to impeach Chief Justice Cholendra Shumsher JB Rana, they would act against four justices who sat on the constitutional bench and had invalidated the Oli government's second move to dissolve the House of Representatives, besides ordering the appointment of Sher Bahadur Deuba as the new PM.

UML Chief Whip Bishal Bhattarai said that party Chair Oli told the party lawmakers that the ruling alliance moved the impeachment motion against Chief Justice Cholendra Shumsher JB Rana to delay local polls, to pass millennium challenge corporation deal anyhow and to unsettle the judiciary.

He said the party leadership would take a call on whether it should move the impeachment motion against the four SC justices after carefully dwelling on the issue and studying legal provisions. Oli said the ruling alliance's move against CJ Rana was aimed not only against an individual, but also against democracy.

He said the party would not throw its weight behind Rana, who had committed numerous mistakes, but the move was condemnable as it weakened the judiciary.

Bhattarai said the UML would retaliate against the impeachment through the Parliament, streets, and judiciary.

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Ruling Alliance’s Stress On Resumption Of HoR

Boycotted by main opposition party CPN-UML, which has been demanding the resignation of the speaker of House of Representatives on his role, a four party meeting held on February 14 discussed the issues for taking initiatives to resume the parliament meeting and forward the bills that are awaiting the parliamentary processes.

The meeting summoned by Speaker Agni Prasad Sapkota dwelt on forwarding the parliamentary businesses in an effective way by holding regular discussions with the political parties represented in the parliament including the opposition parties. The meeting took place at the Federal Parliament Secretariat in Singha Durbar.

Speaker Sapkota said discussions on taking initiatives to forge consensus on the issues of national importance were going on.

"Serious consultations were held in today's meeting to take initiatives to resolve the deadlock of the parliament and resume House business," according to Sapkota.

The Speaker added that important bills related to citizenship and civil aviation should be passed. The bills approved from the National Assembly and sent back to the House of Representatives should be passed."

He said he had serious talks with Prime Minister Sher Bahadur Deuba and leaders of different political parties about the bills that should be passed from the House.

"Extensive discussions were held on contemporary issues and all issues of the national life. There is a common view of all that this discussion should be continued," said Speaker Sapkota.

Similarly, leader of CPN (Unified Socialist) Jeevan Ram Shrestha who participated at the meeting said the Speaker called the all-party meeting in the context of running the Parliament. A total of 42 bills including citizenship are ‘stuck’ in the House of Representatives due to continuous House obstruction by the main opposition CPN (UML).

NBA Welcomes Impeachment Motion

As Nepal Bar Association itself is a party against chief justice Rana, the NBA has stated that registration of an impeachment motion by political parties against Chief Justice Cholendra Shumsher JBR was a positive step.

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Issuing a press statement, general secretary of NBA Leelamani Poudel said the political parties and Members of Parliament should make additional efforts to conclude the impeachment motion as per the constitution.

The NBA has also appealed to the entire political parties and the MPs for their positive intervention to pass the impeachment motion.

The NBA is staging protests for 107 days putting forth its different demands including the resignation of the Chief Justice.

Ministry’s Views

Minister for Law, Justice and Parliamentary Affairs Dilendra Prasad Badu has said the parliament would conduct a discussion over the impeachment motion against Chief Justice Rana.

"The parliament will hold discussions on the proposal. A process has moved ahead for an end to the constitutional stalemate.”

Ninety-eight lawmakers of the ruling parties today filed an impeachment motion against CJ Rana, putting 21 accusations on him.

Following the filing of the motion, Nepali Congress whip Pushpa Bhusal said the CJ failed to prove his effective role in the judiciary, prompting them to seek his removal from the post.

He has been alleged of not conducting the Constitutional bench effectively, exerting influence on several appointments, not implementing the Supreme Court reports and failing to deliver on the duties on basis of the power balance, thus creating a disappointing atmosphere in the judiciary.

Bhusal further argued that they had to file the impeachment motion against the CJ, as he failed to deliver as per the Constitution.

Meanwhile, chief whip of CPN (Maoist Centre) Dev Prasad Gurung said the CJ could not perform his leading role in the judiciary fairly.

“The independent judiciary is hampered by the deadlock for three and half months and failed to perform as per the Constitution and democratic norms and values.

The lawmakers of the ruling political parties have made 21 accusations against Chief Justice Cholendra Shumsher Rana in the impeachment motion registered at the federal parliament secretariat. A total of 98 lawmakers have signed for the impeachment.

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They have accused CJ Rana of being incompetent to uphold democracy, human rights, rule of law, constitutional supremacy and independence of the judiciary

Anomalies and aberration, corruption and brokering thrived in the judiciary during his term and misuse of authority went unchecked, according to lawmakers.

Other points of accusation are - arbitrary use of constitutional rights and responsibility ruined the image of the entire judiciary in the country. The CJ was slow and off the mark to perform for augmenting the role of judiciary and rule of law in the country.

CJ Rana's activities and decisions invited severe criticisms as he worked against the code of conduct and against law. He failed to maintain checks and balance between the State organs, the accusations went on.

He even did not exhibit moral grounds to retain public trust in the judiciary and became incompetent to contribute for long term importance from the viewpoint of jurisprudence, among others.

With the registration of an impeachment motion against Chief Justice Cholendra Shumser JB Rana questioning his performance, he has not been allowed to discharge the duties.

The Process of Impeachment

Article 101 (2) states one-fourth of the total members of the House of Representatives may move a motion of impeachment against the Chief Justice or a Judge of the Supreme Court, member of the Judicial Council, chief or official of a Constitutional Body on the ground of his or her failure to fulfill his or her duties of office because of serious violation of this Constitution and law, incompetence or misconduct or failure to discharge the duties of office honestly or serious violation of the code of conduct.

If the motion is passed by at least two-thirds majority of the total number of the members of the House of Representatives, the concerned person shall relieve of his or her office.

The Constitution, however, guarantees a person charged with impeachment shall be provided with a reasonable opportunity to defend himself/herself.

The motion is proposed by CPN (Maoist Centre)’s Dev Prasad Gurung, Nepali Congress Dr Pushpa Bhusal and CPN (Unified Socialist)’s Jeevan Ram Shrestha and it is backed by 98 lawmakers including Dr Minendra Rijal.

Secretariat Joint Spokesperson Dashrath Dhamala said the motion will be presented before the Speaker and the Speaker will probably present it before the Business Advisory Committee for discussions and will proceed with further action.

As the ruling alliance does not have a two-thirds majority to impeach the chief justice Rana, the motion is going to be a political fiasco as the life of the current House of Representatives remains is less than eight months. However, the motion has further weakened Nepal’s independent judiciary and institutions.

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Keshab Poudel

Keshab Poudel

Poudel is the editor of New Spotlight Magazine.

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