If chief justice impeachment delayed, parties charging him will be in dock

KATHMANDU: MARCH. 17 – By lingering the impeachment process against Chief Justice Cholendra Shumsher Rana, the ruling coalition has created an unprecedented situation where the head of the judiciary may get stuck in a state of limbo, which experts say could pose serious moral questions to the ruling parties.

A little over a month after 98 lawmakers from the Nepali Congress, Communist Party of Nepal (Maoist Centre) and the CPN (Unified Socialist) filed the impeachment motion against Rana, the government on Tuesday decided to prorogue the 10th session of the House of Representatives. The motion was registered in Parliament on February 13.

But just a day ahead of the deliberations on the impeachment motion, the House session ended. As the budget session needs to begin at least a month prior to the budget speech on May 29, as stipulated by the constitution, the 11th session could start, most probably, by April 29. As the focus of the next session will be on the government’s policies and programmes and the national budget, it is unlikely that the impeachment motion against Rana will be a priority.

Experts say like any other individual, Rana also deserves the right to speedy justice.

“The Parliament cannot linger the impeachment motion without taking any decision,” Bipin Adhikari, a professor and a former dean at the Kathmandu University School of Law, told the Post. “Parties are doing injustice to the chief justice.”

Rana has been a controversial figure, with a litany of charges directed at him.

Even before the impeachment motion was filed, with as many as 21 allegations levelled against him, Rana had faced the ire of all 19 justices of the Supreme Court who had refused to share a bench with him. Lawyers had called him out as corrupt and incompetent.

Observers, however, say just as every charge against any individual must be proved in the court of law, accusations against Rana also need to be established in Parliament and lawmakers must impeach him if they consider the charges are genuine. The burden of proof lies on those who moved the motion, not on Rana, according to them.

That Rana was involved in “bench shopping”, a term used to describe assigning cases to particular judges and using some justices and judges and middlemen to commit corruption, is among some of the charges that have been reported by the media and made by the lawmakers. Rana also faced criticism for not taking measures to reform the judiciary. He was accused of demanding a share in the Cabinet by asking for the appointment of one of his relatives as a minister.

According to experts, Rana may be corrupt, incompetent and a blot on Nepal’s judiciary, but if the impeachment motion is not taken to a logical conclusion, parties that brought the charges are answerable.

“Indecision on the impeachment motion would mean the ruling parties used it as a tool to get rid of a justice whom they didn’t like. This is a height of abuse of power,” said Adhikari. “This could set a dangerous precedent as any party with 25 percent strength in the House can register an impeachment against a justice it doesn’t like.”

The impeachment motion was filed as per Article 101 (2) of the constitution which says one-fourth of the members of Parliament can register an impeachment motion against any official holding a constitutional position for failing to perform duty effectively or working against the constitution or seriously violating their code of conduct.

Those who have followed the developments since the impeachment motion was filed say the way the House was prorogued hours before it was scheduled to discuss the proposal indicates some ulterior motive.

Given the technicalities, chances of Rana retiring before the impeachment motion is put to a vote are high.

Rana’s tenure is until December this year. He remains suspended since February 13, the day the motion to impeach him was registered in Parliament.

Rule 161 (2) of the Regulations of the House of Representatives allows the Speaker to present the motion for discussion in the House seven days from the date of its registration. If the ruling parties which registered the motion actually wanted to act on the motion, it could have been tabled on February 20 and the Impeachment Recommendation Committee could have been formed the same day.

The parties, however, waited for two more weeks until March 6 to form the committee and another one week to table the motion on Sunday.

As per the regulations, the recommendation committee can get three months to study the allegations against Rana and submit a report before the House. Discussions on the report then start and any member of Parliament can register an amendment. The House can also direct the recommendation committee for further study allowing two more weeks.

As per Rule 166 of the regulations, the report of the recommendation committee will then be put to a vote. If it gets endorsed by a two-thirds majority of the existing members of the lower house s/he will be relieved from her/his office. The entire process can take four months.

“From the turn of events, it is clear that the impeachment motion was a perfunctory move by the ruling parties. The motion was never registered with the real intention to impeach Rana,” Balaram KC, a former Supreme Court justice, told the Post. “This is nothing but an irresponsible act on the part of ruling parties.”

Experts say people also need to know if Rana actually deserved to get impeached or should be given a clean chit which won’t be possible if he retires before the motion is put to a vote.

Rana was appointed chief justice on January 2, 2019, and he has his term until December 12.

Justice Deepak Kumar Karki, as a seniormost justice, is serving as acting chief justice from February 13. He has already started making crucial appointments. The indecision in the impeachment motion also means the judiciary would be in the hands of acting chief justice for around a year. Karki will be chief justice if the motion is passed by Parliament.

Leaving the judiciary in the hands of an acting chief will only decrease its credibility, according to KC, the former Supreme Court justice.

“The delay in deciding the impeachment motion means Rana will retire as chief justice even if he deserved to be impeached,” said KC. “That means he will continue to get the state benefits accorded to retired chief justices.”

-Kathmandu Post