The recent decision by Justice Cholendra Shamsher Rana has resulted in the reinstatement of Chief Justice (CJ) Sushila Karki. The impeachment motion registered against Karki and the issues it has raised cannot be trivialised. The motion is the first of its kind under the new constitution promulgated in 2015. Sadly, it is not the first instance where the independence of the judiciary has been attacked.
There have been several instances in Nepal’s history where the three organs of state have tried to usurp the functions of one another. To say that we are a fledgling democracy and that such events are inevitable during the evolution of a new form of government is no excuse. Constitutional expert Bipin Adhikari has described the day the impeachment motion against Chief Justice Karki was lodged—April 30, 2017—as a black day in the country’s judicial history. It was a day when the executive deliberately, falsely and publicly mounted an attack on the judiciary’s independence.
On April 13, 2016, Sushila Karki made headlines after being appointed to the esteemed post of Chief Justice. The media and the legal fraternity noted her corruption-free professional background. Now, members of the Nepali Congress have made serious allegations against her—that she has gravely violated the provisions of the constitution by not performing her duties with integrity, that she lacks the ability to work, that she has a bad character and is guilty of violating the law and the code that judges are to follow. Such a mala fide move by one of the country’s oldest parties is deplorable and shameful. This act is an attack not only against the judiciary’s independence but also against any government official who dutifully performs their role.
The impeachment motion mentions nine allegations against CJ Karki; the Nepali Congress and the CPN (Maoist Centre) will be hard-pressed to support even one. For an impeachment motion to be lodged, the signatures of one-fourth of the total 596 Members of Parliament (MPs)—ie 149 signatures—are required. Passage of the motion requires the vote of a two-third majority, ie 447 votes.
What is noteworthy is the stark contrast between this impeachment motion and the one against the former head of the CIAA, Lokman Singh Karki, a few months ago. The earlier impeachment motion was lodged by only 157 MPs. But the fact that the recent motion was backed by 249 MPs makes us question the intent behind this show of strength. Notably, the earlier impeachment motion failed to garner the same support due to threats of corruption charges against those who could sign the motion. Although the constitutional provision of requiring the signatures of one-fourth of MPs is there with the assumption it would be used responsibly, incidents such as these have shown that it is susceptible to abuse.
If and when it is put to a vote, it will be interesting to see whether the impeachment motion against CJ Karki will garner the requisite number of votes for its passage. It is also worth noting that Karki has about a month before retirement, but the impeachment process may take longer. This motion should make us question whether this is a legislature that truly represents the peoples’ needs and aspirations. This issue becomes even more pertinent in the light of the impending elections. Are we electing leaders who truly represent us?
Perhaps the legislature has not thought about the after-effects of the impeachment motion. The incident stands out as a warning to any person with integrity who would consider the judiciary as a career path.
During her one-year tenure, Chief Justice Karki has made several efforts to reform the judiciary and accelerate the pace of judicial decisions. Notably, corruption cases were brought to the forefront. Procedures of docket management resulting in injustice have been straightened out. Her leadership has also resulted in landmark decisions such as the impeachment of the former head of the CIAA and the conviction of three former police chiefs involved in the much-publicised Sudan scam. These were fearless and commendable judgments that should be lauded.
Importance of independence
The origins of the judiciary in both civil and common law can be traced back to its primary function of adjudicating disputes. As societal demands and complexities grew, the duties of the judiciary expanded to include interpretation of the law and judicial reviews. The judiciary’s independence is crucial for it to perform its duties efficiently.
The idea behind a judiciary’s independence began with the concept of separation of powers. Though he did not invent the idea, French philosopher and writer Montesquieu is credited for articulating the concept for the first time in modern history. In his venerated work of political science (De l’espirit des lois, 1748), Montesquieu states that there can be no liberty where the legislature, the executive and the judiciary are vested in one person. Both the legislature and the executive should be wary of interfering and impinging on the judiciary, as judicial review is one of the cornerstones of democracy. However, the recent statements made by the secretary as well as the President of the Nepali Congress not only reflect an absolute lack of respect for the judiciary, they also indicate a desire that the judiciary be subservient to their personal whims.
In most modern and functional democracies, the judicial body is independent from the executive and the legislative bodies. Today, this judicial independence postulates independence not only from other state organs, but also from their peers, potential litigants, lawyers and the parties they represent, appointees and, in our case, politicians. Rule of law proclaims the delivery of justice by competent, ethical and independent representatives who are neutral representatives of the community they serve. It is not only important but mandatory that judges are not influenced by external factors while adjudicating disputes. Similarly, while interpreting the law or performing judicial reviews, it is important that the judiciary is concerned only with the relevant statutes, laws and facts placed before it.
As a newly declared federal state, the preamble to our constitution pronounces that we, the sovereign people of Nepal, are committed to the rule of law under an independent, impartial and competent judiciary. In these troubled times, the impeachment motion is a resounding monition that we need to uphold the constitution and create an environment for the judiciary to perform its role. Lodging an impeachment motion against a reputable character without any basis—either in fact or in law—at such a crucial political juncture has already triggered a domino effect, indicated by the resignation and reinstatement of the home minister, withdrawal of the Rastriya Prajantra Party from the government, and the tussle between the legislature and the judiciary. The motion has been condemned by all notable professionals, legal and otherwise, who recognise the importance of the judiciary’s independence and who support the principle of separation of powers. Let this not be the day we remain silent about things that matter. Let this not be the day that marks the end of our values and hopes.
Yonzon is a lecturer at Kathmandu University School of LawPublished: 2017-05-09 08:25:42