This is the right time for the respected Supreme Court to elucidate and elaborate the essence of this constitutional provision.
KATHMANDU, DECEMBER 18
Impeachment is the process by which charges against a public official for a misconduct and violation of the constitution are initiated by a legislative body or a legally constituted tribunal.
The process of impeachment was first used by the English parliament against the fourth Baron Latimer in the second half of the 14th century. This practice was later adopted by different states of the USA in the late 18th century. Since 1789, 21 impeachment procedures had been proceeded in the USA. Out of them, four charges were filed against three presidents – Andrew Johnson in 1868, Bill Clinton in 1998 and Donald Trump in 2019 and 2021. All three presidents were narrowly acquitted.
In India, four impeachment motions have been proceeded against high court and Supreme Court (SC) judges in the 75 years of Indian independence. All these impeachment motions were proceeded as per the constitutional directives, and all the processes were judicially concluded. These examples depict the colossal gravity of an impeachment motion in modern democracy.
The first-ever impeachment motion in Nepal was filed in 1995 against then Chief Justice (CJ) Bishwanath Upadhyay, who is still remembered for his integrity, legal acumen and courage to make difficult decisions. Upadhyay had given a verdict against the dissolution of the House of Representatives (HoR) by then Prime Minister Manmohan Adhikari. The ruling UML party was infuriated by this verdict. As a vengeance, the impeachment motion was filed against Upadhyay.
A large portion of the intellectual community had criticised the move of the UML inclined towards rejecting the supremacy of the constitution. The motion, however, never entered the formal proceedings in the HoR. It was a mistake made by the lawmakers that time. For whatever reason the impeachment motion was filed against Upadhyay, the process had to be legally concluded.
The second instance of filing an impeachment motion was against the then chief of Commission for the Investigation of Abuse of Authority (CIAA), Lokman Singh Karki, in 2016.
MaThe high-ranking leaders of the major political parties had deviously handpicked him to lead the apex constitutional body intended to curb corruption in 2013. It is rumoured that Karki was poised to open pending cases of corruption and abuse of authority of some of the political leaders in the later phase of his tenure. The result – an impeachment motion wastabled against him, which was never judicially concluded.
One year later, the third impeachment motion was filed against Sushila Karki, the first woman to hold the prestigious post of CJ and comparatively a clean and incontestable character.
She had given a verdict against the appointment of the Inspector General of Police that was unfairly proceeded forward with the direct involvement of the Prime Minister (PM).
This motion was also prematurely aborted after a mutual agreement be-tween the PM, political leadership and the SC.
Recently, an impeachment motion was filed against CJ Cholendra SJB Rana on March 13. Many of Rana's judicial verdicts had attracted serious controversies throughout his career.
His fellow judges, a large section of advocates and members of the Nepal Bar Association, had repeatedly accused him ofcorruption and abuse of authority. The lawmakers, however, ignored his alleged extra-judicial atrocities over the years. In the final year of his tenure, the high-ranking leadership of the ruling coalition seemed to be sceptical of Rana's loyalty towards them, and hence he was inculpated out of the blues. However, the impeachment motion was conspicuously put on hold for nearly eight months as the HoR session was prorogued afterwards.
It seems obvious that the accusers of the impeachment motion never wantedto bring their allegations to a legal conclusion. They were aware that they did not command a two-thirds majority required to endorse the motion. Hence, from the outset, the accusers just wanted to dethrone Rana from the SC so that the judicial leadership could be controlled the way they wanted. This is exactly what had happened over the last 10 months. CJ Rana has already retired since December 14, and the impeachment motion tabled against him in March is still hanging ambivalently. The new HoR, after the recently concluded general elections, has not yet been constituted.
These incidents show that the moralistic and powerful provision of impeachment has been handled irresponsibly and without due caution in Nepal.
The political leadership is brazenly toying with this provision over and again. Article 101 of the Constitution of Nepal is not clear on continuation of the impeachment motion against the individual after his/her retirement.
Moreover, it is not meticulously mentioned whether the proceedings of an on-going impeachment motion will be carried over to a new HoR should the term of the existing HoR terminate. The good thing is that Rana's case is sub-judicial in the constitutional bench of the SC after the general secretary of the Federal Parliament Secretariat sent a controversial letter to Rana stating that the impeachment motion filed against him had been annulled.
This is the right time for the respected SC to elucidate and elaborate the essence of this constitutional provision. Let's hope that the respected SC will be able to establish an appropriate and acceptable jurisprudence of impeachment motion for impending reference. This will restrict the irresponsible use of impeachment motions in the future.
The ball is in the SC's court, and it should act unbiasedly on this issue to conserve the fading integrity of the SC. Recently, the National Human Rights Commission has been downgraded to level B by the Geneva-based Human Rights body due to its incompetency in handling sophisticated human rights issues. Hopefully, the respected SC and Nepal's judiciary will not meet a similar fate in the coming days.
A version of this article appears in the print on December 19, 2022, of The Himalayan Times.
