Gives defendants one week to furnish written replies to show cause notice
KATHMANDU, DECEMBER 9
The Supreme Court has stayed the execution of the letter written by Secretary General of Parliament Secretariat Bharatraj Gautam giving clean chit to Chief Justice Cholendra Shumsher JB Rana who faces impeachment motion in the House of Representatives.
The stay order issued by the five-member constitution bench led by Acting Chief Justice Hari Krishna Karki in response to a writ petition filed against Gautam's move to give clean chit to CJ Rana is a setback for Rana who wanted to retire from the SC with clean image. Rana will retire from service on December 13 on age ground.
The SC also issued a show cause notice to defendants directing them to furnish written replies within seven days through the Office of the Attorney General. The top court ordered Rana to submit his written reply himself or through his agent within seven days.
Secretary General of Parliament Secretariat Gautam will also have to give reasons for giving clean chit to Rana who remains suspended since February 13 when 98 lawmakers from the ruling alliance filed an impeachment motion against him accusing him of favouritism, corruption, and seeking a quid pro quo deal with the executive.
The bench observed that the Impeachment Recommendation Committee formed by the HoR had suggested that the case should be presented in the next HoR after election. The SC said secretary general stated that the letter which prevented Rana from performing his duty as the CJ was no longer valid but he did not cite any legal basis for lifting Rana's suspension.
As petitioners have raised an important question that the secretary general of the Parliament Secretariat exercised the authority vested in the HoR by the constitution to lift Rana's suspension, it would not be appropriate for the court to allow execution of the secretary general's letter, the SC observed in its interim order.
Former attorney general Badri Bahadur Karki said Gautam and Rana could be indicted for contempt of court as their acts created obstruction of justice.
Senior Advocate Shambhu Thapa urged the bench to tell Rana that he had indulged in corruption and he could not resume his job as the CJ. He argued that the impeachment motion did not become void with the end of the tenure of the House of Representatives.
"New HoR will take up the case," Thapa said. He said the secretary general had no authority to give clean chit to Rana.
Thapa argued that fraudulent collusion between Gautam and Rana to undermine the constitution was nothing short of sedition.
President of the SC Bar Association Purna Man Shakya, who is one of the petitioners, said if Gautam's clean chit to Rana was validated, the secretary of Judicial Council could dismiss the chief justice and chief secretary could dismiss the prime minister through a letter. He argued that the impeachment case filed against Rana was under the HoR's jurisdiction and no government employee had the authority to sabotage the case before it was decided by the authorised body.
The case was heard by the five-member constitutional bench led by Karki. Other justices on the bench are Bishwombhar Prasad Shrestha, Ishwar Khatiwada, Ananda Mohan Bhattarai, and Anil Kumar Sinha.
Nine lawyers, including Shakya, Vice-president of SCBA Mukunda Prasad Paudel, and Advocate Bikash Bhattarai had filed a writ petition at the Supreme Court on December 7 demanding that the court stay the implementation of Gautam's decision. They argued that the power to declare the impeachment motion filed against Rana void rested only with the elected members of the HoR.
Petitioners argued that Gautam's step, which he took at a time when the new HoR meeting was about to convene, was prima facie unconstitutional as it was aimed at rendering the power of the new HoR ineffective.
A version of this article appears in the print on December 10, 2022, of The Himalayan Times.
