April 30, 2017, will go down as a dark day in the history of judiciary of Nepal. This day marks the filing of a motion of impeachment against the Chief Justice of Nepal for the first time. This is an attack on judiciary as well as foundation of democracy. The action comes against the first female Chief Justice who during all her judicial career has been applauded for the job well done in various high profile cases including the case of Lokman Singh Karki. Much about the impeachment has been said and told, but few things need to be re-stated before moving ahead with the discussion.
What the Constitution of Nepal says about Impeachment
According to Sub-section 2 of Section 101 of the Constitution of Nepal, 2015 "A motion of impeachment against the Chief Justice or any other Judge of Supreme Court, member of Judicial Council and Head or official of Constitutional Bodies may be moved by at least one-fourth majority of the total number of the then members of House of Representatives on the grounds of serious violation of the Constitution and law, his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason; and if the motion is passed by a two-thirds majority of the total number of the then members of joint session of both Houses of Federal Parliament, he or she shall ipso facto be relieved of his or her office".
Sub-section 6 of the same section says, "Once the process of impeachment is set in motion as per clause (2), then the person against whom the impeachment motion is moved, whether Chief Justice or Supreme Court judges, members of Judicial Council or chiefs or members of Constitutional bodies, shall not perform his/her duty till the process over the motion is complete".
Timing of the motion of Impeachment
The motion of impeachment filed the largest parties in the ruling coalition was carried out in a hurry. It came out as a major surprise to almost everyone. The sense of urgency can be clearly seen in the action as the subject was not well discussed. The motion of impeachment was safeguarded by the parties and leaders as if it was a matter of "National Secret." Besides those involved directly in the motion as signatory or strategist others had no clue, it was coming.
Not only in public domain, but the motion of impeachment was also not discussed within the parties as well. The resignation of Deputy Prime Minister and Minister for Home Affairs Bimalendra Nidhi over alleged dissatisfaction with the move to impeach Chief Justice reflects how closely guided move it was.
Secondly, the motion has been filed exactly before the final decision of a high-profile case relating to the appointment of Inspector General of Police and other verdict of other high-profile corruption cases. It must also be considered that the Chief Justice had a little more than a month to serve the judiciary. The urgency of the government to impeach Chief Justice who had a month in the bench, exactly before the hearing of such cases and in the context of government's open dissatisfaction over the judiciary in recent judgments reflects that impeachment motion is nothing more than a motive-directed move.
The timing and urgency to file a motion of impeachment clearly indicates the Mala Fide interest of the government. This leads to an obvious conclusion that government's strategic move against the Chief Justice in the form of motion of impeachment is an attack on independent and functional Judiciary.
The Allegations and Grounds
The allegations raised as grounds for impeachment is preposterous. The allegations of the biased verdict, interfering with executive duties, favoring certain judges and others are surprising. The allegations specified in the motion of impeachment indicates that they were sought for reasons which, won't be justified during later course but can get the job done for now (i.e. get the motion filed and suspend the Chief Justice). The allegation raised and the unfolding of the event shows that the parties wanted to get rid of Chief Justice as soon as (technically) possible.
One of the interesting things in an allegation is that some of the regular allegations on the judiciary in general/and judges, in particular, are missing i.e. issue of corruption. The missing allegation of corruption can help us conclude that the Chief Justice was not corrupt by any means. Further, the initial writings on her role as a judge have clearly established that she was headstrong, not influenced and unbiased. This leads to the conclusion that she was too strong for the executive branch and they lost their head over it and decided to attack judiciary in the form of motion of impeachment.
Considering the immunity of government towards these allegations and its effort to activate impeachment in prior instance clearly establishes that the allegations are ill-founded and sought for only to satisfy the procedural requirement. We have had the head of constitutional bodies and even Chief Justice/Justices who are alleged of a more severe allegation that these but never was a prospect of impeachment considered before. Thus, let us all understand this is not about the claim that has been made. There is more to it that what has been filed in the form of motion of impeachment.
The Precedent
One of the lasting damage the motion of impeachment will lead to is the precedent that "impeachment" can be used as a tool for political gain when favorable and desirable. This motion filed has significantly downsized the gravity of impeachment itself giving the executive upper hand. This at present may look like an isolated event but this opens up for similar attempts in future.
This also establishes that no wider public or party discussion is required for such moves. In a country where political parties can come to any agreement for narrow political gains, this instance makes our political state more fragile. Now parties can gang up against anyone they collectively dislike and use impeachment as an instrument in hand.
For those who believe in the independence of the judiciary and the rule of law the motion reflects a dark day but for those in political power who aim at dictatorship, political control and interference the Act has given a new dimension of what they can do too. This is very unfortunate for a nation.
Larger than single motion of impeachment
The filing of a motion of impeachment requires greater than dissatisfaction over the function of Chief Justice and action taken to rectify it. This is an open attack on the independence of the judiciary. The three branch of government legislature, executive and judiciary much check and balance. However, the executive is crossing all known lines to attack and weaken judiciary simply because the judiciary is doing its job.
This attack on the independence of the judiciary, if not refuted strongly, will lead to a culture of interference over the judiciary. This challenges the very foundation of constitutional arrangement and philosophy of check and balance. The motion of impeachment is not a strategic tool to be used to seek revenge or political gain. The single act of filing of a motion of impeachment has attacked the independence of the judiciary in one hand and corroded the sanctity and gravity of impeachment itself. This act will go down in history has one worst foul play by executive against the judiciary.
Political parties and Accountability
The motion of impeachment is the most recent example on how political parties do not value accountability towards their actions. They did not feel it was necessary for them to bring the issue for public debate. This reflects that the political parties follow top-bottom approach and what they decide will be pursued irrespective of what is right.
This is not the first nor the last time that accountability aspect has been undermined. It is one of the basic features of Nepali politics to undermine accountability. If the accountability were sought for political parties before then, they would not have gone to this extent. This act of filing of impeachment reflects how undervalued is "Accountability for Actions" for political parties in Nepal.
Another crucial question is the legitimacy of the signatures of that are provided in the application. Some of those in the list of signatories have refuted with media regarding their knowledge of the motion and also claimed that they never signed for such motion. This has raised the question of forgery too. This calls for proper investigation of the signatures presented.
However, this is the question of accountability and unless political parties are made accountable for their action issues like these cannot be addressed.
What Next?
I am confident that the motion of impeachment will not sustain eventually. However, it has done the damage. This should have a negative impact on the credibility of the parties and those who agreed to attack the independence of judiciary. This should raise broader accountability questions regarding the political parties and political leadership.
The impeachment row is unfortunate but a well calculated strategic attack on the independence of the judiciary. 30th April 2017, shall remain as one of the darkest days in the history of the judiciary, democracy and political accountability in Nepal.
