Impeachment motion has exposed vulnerability of constitutional provision

  • Interview Bipin Adhikari

May 8, 2017-

Last week, two major ruling parties filed an impeachment motion against Chief Justice (CJ) Sushila Karki, a decision that elicited widespread criticism. That move was followed later in the week by an interim order by the Supreme Court (SC), directing the Legislature-Parliament to put the motion on hold and allowing Karki to return to the bench. 

Shashwat Acharya spoke to Bipin Adhikari, a constitutional law expert and Dean of Kathmandu University School of Law, about the impeachment motion, its causes and effects, including on the upcoming local elections, the SC's interim order and the constitutional provision of impeachment.

You described the day on which the impeachment motion against CJ Karki was registered as a black day. Why did the day deserve such a description?

The motion same as a surprise. There should have been some discussion in the political circle about the charges to be made against the Chief Justice prior to registering the motion. It does not appear that there was consultation with experts in the field and with civil society members. Only if there is widespread public dissatisfaction and if the conditions mentioned in Article 101 apply can an impeachment proposal against someone be advanced.  

For example, there have to be problems with the person’s competence and character. One charge against Karki was that she gave cases to judges of her choice. But that’s a prerogative of the Chief Justice.  There might be issues with Karki, but they are to do with the court’s internal management and do not constitute adequate grounds for impeachment The background of the case and the reasons given in favour of the motion do not warrant an impeachment. The charges are aggravated and unsustainable. It is a politically motivated proposal and is an organised threat against the judiciary’s independence. 

What do you think were the motives?

Karki’s independent acts and firm judicial leadership have been a nuisance to some power centres. For example, she showed determination to clear pending corruption cases before her retirement—an act against some vested interests to keep the cases pending. 

Those opposing Karki have their own interests in doing so. There were those who did not want Karki as the Chief Justice even for one additional day. The case of the Inspector General of Police makes it very clear. Immediately before the motion was registered, Karki was threatened with impeachment. The prime minister sent his emissaries to negotiate with her. Karki’s stand against impunity also posed a threat to those who had not been arrested even after their conviction. 

It is also incredible that the impeachment motion was processed so rapidly. The motion is registered at 4pm, the SC informed at 4:30 and the acting Chief Justice appointed at 5. This shows kind of extreme effort that has gone into suspending Karki.  

How did you view the interim order by Justice Cholendra Shumsher Rana to stay the impeachment motion?

It was the right response to the unjustified move on the part of the executive to interfere with the judiciary. Some issue can be raised on the style of the interim order, particularly the use of emotional language, but the decision itself was appropriate. Of course, I cannot comment on the outcome of the case.

There was another recent case of impeachment against Lokman Singh Karki, the chief of the CIAA. What parallels can be drawn between the two cases?

There had been pubic discussions about impeaching Lokman Singh Karki for months. And as the discussions progressed, public opinion in favour of an impeachment became more consolidated. It was widely believed that Lokman Karki was operating illegally and abusing the authority of his position. I think the impeachment motion against him was justified. The motion against Sushila Karki, on the other hand, was not justified.

Yet the motion against her appeared to follow due constitutional process. Do you see a flaw in the constitutional provision itself that allows the motion’s registration with the signature of a quarter of the lawmakers? 

That’s the standard practice. Impeachment is meant for cases where there is serious abuse of authority. It’s not a flaw in the constitution. The statute assumes that if one fourth of the lawmakers agree, it fulfils the minimum requirement for a viable case. And the provision of immediate suspension upon the registration of an impeachment motion is aimed at preventing undue influence on the case by the person being impeached. But here, it seems that some of the signatories to the motion did not even know why it was being proposed. 

Now that the provision has been used, what kind of precedent does it set, since there are concerns about erosion of the principle of separations of powers?

It’s not one particular case but the wrong precedent it can set that is the real concern. The government is not vested with the authority to carry out some crucial functions of the state. For example, the government was earlier responsible for appointing civil servants, conduct elections, monitor human rights situation or audit its transactions. Now there are independent commissions or bodies for such functions. All these bodies have been made vulnerable because of the impeachment provision. The case against Sushila Karki has exposed the vulnerability of the constitutional provision. It’s a direct threat to the independence of the judiciary and other constitutional bodies. 

What is the right course of action to safeguard the judiciary’s independence?

As I said, the fault is not with the constitution. But now that the politicians have stooped so low and abused the impeachment provision, there is a need to rethink ways to regulate the provision.

 

Any suggestions on how to go about doing that?

The two-third threshold required to pass an impeachment proposal is fine, but the one-fourth required to register an impeachment motion may have to be revised. The threshold may have to be made greater than 50 percent. There is a legal principle called the nuisance rule: what cannot be done directly should not be done indirectly either. But when that norm is weakened, the threshold may have to be raised. 

Do you see the impeachment motion affecting local elections?

Some have viewed the impeachment motion as a way to distract attention away from local elections. There may be some truth to that. But the impeachment motion and the elections are not directly related. There is no Supreme Court intervention in any election-related issue at present. Nor is there a scenario that presents such a possibility.  

There has been talk about a constitutional void in case three elections aren’t held by January 2018. Could the impeachment motion be a pre-emptive move to prevent the SC from acting should such a void come to pass? 

At times, the Supreme Court has intervened when there is political instability in the country.  Major issues have been resolved through court orders, such as the reinstatement of the House of Representatives or the appointment of ambassadors. It was the court that warned the Constituent Assembly that it cannot extend its own term ad infinitum. That was when the court hadn’t felt the threat of an impeachment.   

That may no more be the case. This time too, the government, through a constitution amendment, may want to keep extending its tenure without seeking a fresh mandate. The impeachment motion may have been used to check the court’s possible intervention in case three tiers of elections are not held by the constitutional deadline. But whether or not that was the intention, if the impeachment motion is not withdrawn and the government doesn’t apologise, the court’s independence will be compromised—not just immediately but also in the long term. The motion has already threatened the court and has had an enormous impact on the judges’ psyche. But a withdrawal of the motion and an apology would be an exercise in damage control. 

Can the constitutional requirement to present the budget on Jestha 15 (May 29 this year) and the proposal to amend the constitution in between the two phases of the local elections be impediments to hold the second phase? 

It’s the government that declares elections. But once the declaration is made, the government is no longer a deciding authority on the matter of elections. As such, the government was not authorised to make a subsequent decision that the there would be a second phase to the elections. If two phases were necessary to hold local level polls, the proposal should have come from the Election Commission.  

According to the election code of conduct, there cannot be an amendment to the constitution in between two phases of local elections. Any political decision at that time affects the second phase of elections. Similarly, presenting the budget in between the two phases would also violate the election code of conduct, as it would influence the second phase of the elections.

Published: 08-05-2017 08:05

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