Some say the motion will become redundant after the HoR's tenure ends, others say the new House can take it up
KATHMANDU, SEPTEMBER 12
Political leaders and lawyers may be divided on the date when the tenure of the House of Representatives will end, but if the argument of the Election Commission is accepted and the HoR tenure ends on September 17, a day before the filing of candidacies for November 20 parliamentary elections, what will happen to the impeachment motion filed against Chief Justice Cholendra Shumsher JB Rana if the HoR cannot decided on the motion by September 17.
There are two schools of thought on the tenure of the HoR and the fate of impeachment motion, with one group saying that the impeachment motion will become redundant after September 17 and the other saying that the motion will be taken up in the next HoR after November 20 elections.
Prof Gandhi Pandit, who teaches law, said as per the prevailing laws and procedures, the motion would be rendered ineffective with the end of the tenure of the HoR.
Senior Advocate Surendra Bhandari said the impeachment motion filed against Rana would be redundant after September 17 when the HoR tenure would end, as all bills or proposals under consideration of the House would be rendered ineffective from the day candidates filed their candidacies for general elections.
He, however, said it would be immoral for CJ Rana to return to the Supreme Court as CJ. Bhandari said that it was wrong on the part of lawmakers to delay the impeachment motion filed against Rana.
Senior Advocates Mithilesh Kumar Singh and Chandra Kanta Gyawali said that the constitution had fixed the HoR's tenure for five years and that term would end only on November 25.
Singh said that impeachment motion would be taken up in the new HoR.
Gyawali said the argument that the tenure of the HoR should end a day before the filing of candidacies for the parliamentary elections was flawed and against constitutional provisions and parliamentary practices elsewhere.
He said the SC had ruled in a case that the HoR's five-year term should be counted from the day the election was held.
"Unlike the Indian constitution where it is clearly stated that the term of the HoR will start from the first meeting of the House, our constitution does not say when the tenure begins.
"However, the constitution has fixed the HoR term for five years and the SC has also ruled in a case filed against HoR dissolution that the HoR had a fixed five-year term unless failure to form the new government necessitates dissolution of the HoR," he argued.
Gyawali said the House panel had enough time to investigate against Rana and even if it failed to complete the probe before the November 20 elections, the new HoR could continue the investigation.
There are multiple examples in India and the USA where impeachment investigations were taken up by the new Houses, he argued.
Gyawali said only sub judice bills could become ineffective with the dissolution of the House, not an impeachment motion.
Assistant Spokesperson for the Parliament Secretariat Dasharath Dhamala said the House Regulations did not clearly say what the fate of the impeachment motion would be once the tenure of the HoR ended.
" As far as a bill is considered, it becomes ineffective with the end of the House tenure. In the case of a motion, whether it is urgent motion or a stricture, the motion dies with the end of the session of the Parliament," Dhamala said.
He added that since the impeachment motion was a different issue, with a constitutional dimension and since it was linked to the country's politics, the Parliament Secretariat had not reached any conclusion on the issue yet. Rana, however, will retire as CJ on December 13.
The impeachment motion against Rana was moved by 98 lawmakers on February 13 by invoking Article 101 (2) of the constitution.
A version of this article appears in the print on September 13, 2022 of The Himalayan Times.
