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Impeachment Motion and Reinstatement Of Chief Justice

Issue May 2017

Impeachment Motion and Reinstatement Of Chief Justice

Siddhi B Ranjitkar


The waves of media report on the motion to impeach the chief justice finally settled down, and the public needed to wait what the actions of the parliament would be after it came back to work on May 18, 2017. The Nepalese regular media, social media and civil society leaders had vehemently voiced against the motion; some of them, of course voiced for the motion, too. One of the coalition partners of the government, Rastriya Prajantra Party (RPP) even pulled out of the government protesting against the motion. A single bench of the Supreme Court of Nepal reinstated the suspended chief justice, and issued a stay order to the parliament on the motion.


More than 25 percent of the lawmakers belonging to NC and CPN-Maoist-Center surprisingly introduced the motion to impeach Chief Justice Sushila Karki in the parliament on April 30, 2017. The chief justice was automatically suspended following the constitution.


The senior most justice Gopal Parajuli took over as an acting chief justice. He ran the court administration from May 1 to 4 for four days. He went on leave after a single bench of the Supreme Court reinstated the suspended chief justice to the duty on May 5, 2017.


The current controversy, the Supreme court has created involving in the business of the legislature-parliament, has some similarity of the controversy, the ruling of the then Chief Justice Biswonath Prasad Upadhaya has created reinstating the parliament the then Prime Minister Man Mohan Adhikari dissolved n 1995. The only difference has been the then chief justice had simply met the wishes of the NC even ignoring the constitutional provision; the current chief justice has gone against the wishes of the NC.


Some political analysts particularly those sympathetic to the establishments have charged the current Chief Justice Sushila Karki with creating a political chaos giving the political verdicts. However, they forgot that the heavily political verdict of the Chief Justice Upadhaya in 1995 had a long-lasting political chaos. At that time, CPN-UML even though wanted to introduce a motion to impeach the chief justice could not do so because the Speaker did not register it.


Currently, the lawmakers have introduced the motion to impeach the chief justice stating the chief justice has unnecessarily interfered in the business of the executive ordering the government to annul the promotion of DIG (Deputy Inspector General) Jaya Bahadir Chand to the IGP (Inspector General of Police) done in February 2017.


Following the pressure of President of NC Sher Bahadur Deuba, the government had promoted Jaya Bahadur Chand: the DIG ranked number four among the four candidates recommended for the IGP to the position of IGP obviously bullying the law, the Nepalese media stated.


Some of the NC leaders had the habit of keeping themselves above the law. They did not care about the laws, rules, and regulations while taking decisions. For example, in 1990s when Girija Prasad Koirala was the prime minister, the government became controversial after firing experienced civil officials and hiring new ones with the bogus certificates. So, how Deuba has been currently behaving is not a surprise at all.


Then, the claimant for the IGP position Nawaraj Silwal went to the Supreme Court demanding justice for him. The Supreme Court found out that the government had promoted Chand bypassing the law; the Supreme Court also revoked the promotion of Chand, and asked the government to follow the law on promoting one of the four DIGs to the IGP on its ruling on March 21, 2017.


In the second round of the promotion made based on the findings of the four-member review team the government had set up after the ruling of the Supreme Court, the government promoted DIG Prakash Aryal to the IGP, and he was sworn in immediately after the cabinet decision, anticipating Silwal would be going to the Supreme Court again.


After the ruling of the Supreme Court on March 21, 2017, the government set up a four-member review team comprising Secretary to Home Ministry Lok Darsan Regmi as the head, and secretary to Prime Minister’s Office Tanka Mani Sharma, Secretary to Ministry of Law Kamal Sali Ghimire, and Acting Inspector General Dinesh Chandra Pokhrel as members to review the job performances of the four potential candidates such as Prakash Aryal, Nawaraj Silwal, Bam Bahadur Bhandari and Jaya Bahadur Chand for one of them to promote to the IGP, the news on stated on April 11, 2017.


Reviewing the marks the four candidates had scored on their job performance during the last four years, academic qualifications, seniority, and awards they had received, the four-member review team came out with Aryal scoring 154, Silwal 152.4, Bhandari 150.2 and Chand 147, the news stated.


As anticipated, Silwal went to the Supreme Court claiming that the government had promoted the man scoring the second highest marks bypassing him. Silwal claimed that he scored the highest marks in the job performances; so, he was on the top of all on the list of the four DIGs recommended for the promotion.


However, the government had said that DIG Prakash Aryal had the highest score and he got the promotion. At the same time, the government claimed that the job performance score Silwal had submitted to the Supreme Court was a fake one. The police even arrested Silwal for faking his job performance. He was kept in detention until his lawyer went to the court and got him released.


One of the senior NC leaders Bimalendra Nidhi holding the portfolio of the home minister in the coalition government quit the office in protest against the controversial promotion of the Chand and then Prakash Aryal to the IGP. The Nepalese media has it that Nidhi wanted to promote Silwal to the IGP whereas Deuba wanted Chand because Chand was the Deuba’s favorite. Deuba and Chand are from the far west Nepal.


However, the government did not accept the resignation of Nidhi, and Deuba successfully persuaded Nidhi to go back to work. Nidhi followed persuasion of his party boss Deuba and had been back on the job of home minister. Keeping Nidhi in the government, Deuba avoided the internal dissent in the party at the time of the upcoming local elections to be held on May 14, 2017.


One of the coalition partners of the government, Rastriya Prajantra Party (RPP) quit the government stating the senior coalition partners did not even consult with the RPP: one of the junior partners in the coalition government before introducing the motion to impeach the chief justice, and in protest against the motion. However, chairman of RPP Kamal Thapa said that his party would vote for the Bill on the amendment to the constitution in the parliament.


The main opposition CPN-UML and its junior partners have violently opposed the motion to impeach the chief justice. They have disrupted the parliamentary proceedings stopping to deliberate over the motion. They also have demanded to adopt a fast-track process for deliberating over the motion to impeach the chief justice if the parliament wanted to move it forward if not then withdraw it.


The opposition believed that the motion to impeach the chief justice was to disable the most active chief justice simply introducing the motion to impeach her without having any possibility of passing it in the parliament by the two-thirds majority. The chief justice was to retire in a month. So, the opposition had been charging the lawmakers of the coalition partners in the government with filibustering the motion.


The press release of UNHCHR issued on May 5, 2017 stated, “UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein has condemned moves to impeach the Chief Justice of Nepal, warning that such actions suggest a concerted attempt by the Government to undermine the independence of the judiciary.”


“Chief Justice Sushila Karki has been instrumental in a number of high-profile and politically sensitive decisions, and therefore the attempt to remove her gives rise to serious concerns about the Government’s commitment to transitional justice and the rule of law,” Zeid said, the press release stated.


On May 5, 2017, a single bench of Justice Cholendra Shumsher JB Rana issued an interim order to the parliament not to move forward the motion to impeach the chief justice of the Supreme Court of Nepal, and lifted the suspension of the chief justice from the job that came as a bombshell exploding in the legislative-parliament.


The interim order stated that the motion to impeach Chief Justice Sushila Karki introduced at the parliament on April 30, 2017 based on the pending case concerning the promotion of one of the DIGs to IGP at the Supreme Court did not follow the spirits of the Constitution, and opened up the door to the suspended chief justice to continue her duty as a chief justice. She took up the business of the Supreme Court even on Friday, May 5, 2017.


The NC and CPN-Maoist-Center said that the interim order was unconstitutional, and it was the blatant interference in the prerogative of the legislature-parliament. They concluded that the Supreme Court could not interfere in the parliamentary business; so, the parliament would debate over the motion to impeach the chief justice, the media news quoted Attorney General Raman Shrestha.


The Attorney General quoted the Article 103 (5) of the Constitution that states “(5) No proceedings shall be initiated in any court against any person in respect of the publication, under the authority granted by any House of the Federal Parliament, of any document, report, vote or proceeding. Explanation: For the purposes of this clause and clauses (1), (2), (3) and (4), "House" means the House of Representatives or the National Assembly, and includes a joint sitting or committee or joint committee of the Federal Parliament.”


The parliamentary session scheduled for May 7, 2017 was unexpectedly postponed for May 18 for 11 days. In a news conference held on May 7, the Speaker said that it was done so to avoid the confrontation between the judiciary and the legislature. She also said that once a case was entered the legislature it was under the prerogative of the legislature hinting at the Supreme Court had no authority to interfere in it.


At a press conference held at the Parliamentary secretariat on May 7, 2017, Speaker Onsari Gharti said that the motion to impeach the chief justice entered the parliament following the due process; how to forward the impeachment motion are the internal and the prerogative of the parliament, the RSS news in “The Rising Nepal” stated on May 7, 2017.


The Speaker also said that the constitution clearly mentioned about the duty, responsibilities and rights of the executive, legislature and judiciary following the principles of the separation of power; so, all three bodies should remain within their constitutional limit of duty following the provision made in the constitution.


The Speaker said, "Tussle among major organs of the state would have adverse impact on institutionalizing the democracy and on the upcoming local-level elections." She added, "It is necessary to find out the solution exercising patience by carrying out self review of their role by all bodies of the state and office-bearers." RSS news in The Rising Nepal


The news on the on May 7, 2017 stated, “PM Dahal and Nepali Congress (NC) President Sher Bahadur Deuba were fuming in the meeting held at the Prime Minister's Office immediately after the Supreme Court (SC) issued an interim order against the impeachment motion on Friday. Attorney General Raman Shrestha had also opined that legal and other recourses should be taken against the judiciary that violated the jurisdiction of the parliament.”


Other leaders present at the meeting took the soft approach. The news on the stated, “But other leaders present in the meeting had advised not to take a hasty decision in anger and asked to let things cool down on Saturday. "The voice for exercising restraint ultimately prevailed. Efforts have now been started to resolve the conflict by forging a ceasefire," a minister present during the Friday meeting told Setopati.”


"The discussion focused on not allowing further escalation of the conflict," a minister present in the meeting told Setopati. "We advised to look for a solution even by postponing the House meeting scheduled for Sunday afternoon," the minister added, the news on stated.


Chief Justice Sushila Karki had had a one-on-one talk with President Bidhya Bhandari on May 7, 2017. Ostensibly, the chief justice went to invite the president to the celebration of the 65th Law Day, the Supreme Court was holding on May 9, 2017 but she had a good talk with the president for an hour on the prevailing political and judicial situation, the media reported.


Speaking at the function, the Supreme Court held to celebrate the 65th Law Day on May 9, 2017, Chief Justice Sushila Karki said that the assault made on the principles and values of the judiciary to serve the interest of any class or an individual would not benefit anybody, the news in “gorkhapatra” stated on May 10, 2017. The chief justice also echoed the sentiment of the Speaker that all constitutional bodies should remain within the limit of their duty.


Prime Minister, Speaker, and Law Minister used to participate in the Law Day function in the past. However, this year, none of them except for the Minister for Information and Communication attended the function indicating the misunderstanding between the judiciary on the one hand and the executive and the legislature on the other hand has not gone, yet. President Vidhya Bhandari and Vice-president Nanda Bahadur Pun and other high officials attended the function.


The controversy, the motion to impeach the chief justice has created, has simmered down. Chief Justice Karki has returned to her job. She has less than a month to go before retiring from the job on June 7, 2017. She has been less arrogant, the news media stated. Previously, she did not even meet with the political leaders that wanted to talk to her about head-on confrontation going on between the judiciary on the one hand and the government and the legislature on the other hand.


Politically, the interim order of the Supreme Court has washed the sins of the NC and CPN-Maoist-Center lawmakers that had filed the motion to impeach the chief justice. The motion had sent a negative message to the public at the time of the local elections. Probably, it would have adversely affected the results of the elections to the NC and the Maoist-Center but the interim order had effectively neutralized the negative message. So, the interim order has been the blessing in disguise for the NC and the Maoist-Center. Obviously, the victims have been the RPP ministers that quit the government in protest.


May 10, 2017

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