Irreparable damage

  • The impeachment motion seems politically motivated and aimed at barring the CJ from carrying out her duty
- GOVINDA SHARMA BANDI
The constitution needs to be amended to limiting impeachment grounds to ‘incapacity or misconduct’ if we are to ensure the independence of the judiciary

May 9, 2017-

For the first time in the history of Nepal, an impeachment motion against the Chief Justice has been registered in Parliament. Many leading legal experts and jurists believe that the intention behind the motion was to gain political control over the judiciary, with an aim to undermine the independence of the judiciary and the rule of law. But the supporters of the motion argue that it was an essential move, as Chief Justice Karki was crossing a boundary and encroaching on the government’s executive powers. Therefore, the motion for the impeachment of Chief Justice Karki has sparked serious debate about the impeachment process, its limitations and the intention behind it. 

Removal of a judge if the judge is incompetent or corrupt is permissible in any democratic system, but prior to any consideration by Parliament, a thorough, fair and independent investigation into alleged misconduct or incapacity has to be conducted by a qualified, judicial mechanism. Any impeachment procedure that falls short of these standards is inimical to the rule of law and the judiciary’s independence. 

Under international law, judicial inquiry into the misconduct or incapacity of a judge or, in this case, the Chief Justice, is a mandatory requirement before initiating any impeachment motion. This principle is embedded in almost all constitutional traditions. For example, if we look at the Indian practice, at least 50 members of the Rajya Sabha or 100 members of the Lok Sabha can initiate an impeachment motion. However, after that, the Speaker or Chairman, on the basis of the allegations framed, has to form a three-member bench to look into the allegations. Similarly, if the bench, after looking into the charges, feels that they are ill-conceived or cannot be substantiated, the same is recommended to the House and the proceedings are dropped. If the bench recommends that the judge in question be impeached, the decision will trigger a process of voting in the House on whose basis it is decided if the judge is to stay or not. 

Previous impeachments

Contrary to international standards, Nepal’s constitution does not require prior inquiry if one-fourth of the Members of Parliament sign a motion and submit it to the Speaker. Even the Speaker has no role to play in examining the prima facie evidence of the case. Mere registration of the motion in Parliament results in the suspension of the Chief Justice. These provisions raise serious questions about the objective of the constitution in establishing an independent judiciary. 

In Nepal, prior judicial inquiry into allegations relating to impeachment motions had, in recent times, been a standard procedure. In the case of the impeachment of Supreme Court judge Rana Bahadur Bam in 2011, the Judicial Council commissioned a preliminary investigation by constituting an inquiry commission headed by a sitting Supreme Court judge. After a report had been submitted, the Council decided to refer the case to the Parliamentary Committee for further consideration. Justice Bam was not suspended until the preliminary investigation on the allegation of misconduct had been carried out. However, the impeachment motion against him was dismissed, as he was assassinated before the motion was formally discussed in Parliament. 

Similarly, the first ever attempt to impeach a Supreme Court judge, Justice Surendra Prasad Singh, by Members of Parliament failed in 1995 as the Speaker of the House blocked the motion stating that the allegations did not make a prima facie case of wrongdoing. 

Grounds for impeachment

These practices seem to have some levels of procedural safeguards. However, in the current case, no such measures were taken; the motion seems politically motivated and aimed primarily at barring the Chief Justice from carrying out her duty. Hence, the current motion to impeach the Chief Justice breaches the international standards on the independence of the judiciary. 

Also, the grounds for impeachment under Article 101 of the constitution seem very problematic, as the motion uses, among others, very vague terms such as “failure to fulfil his or her duties” or a “serious violation of this Constitution and law” and a “serious violation of code of conduct”. International law and practice allow only two grounds for impeaching a judge—misconduct and incapacity. However, while Nepal’s constitution allows additional grounds for impeachment, concrete and well-defined explanations of these grounds havn’t been spelled out. This allows politicians to subjectively decide the grounds for an impeachment motion. 

In this way, the constitution inappropriately empowers political parties, allowing the signature of one-forth of lawmakers to file an impeachment motion. Moreover, automatic suspension of the judge after the filing of such a motion permits political parties with the necessary quorum in Parliament to impeach a judge in any case they are not pleased with. Barring a judge from dispensing his or her duties without any credible and independent investigation on the allegations reinforces political control of the judiciary solely on the basis of their numbers in Parliament, effectively compromising the independence of the judiciary. Hence, the constitution needs to be amended to limiting impeachment grounds to ‘incapacity or misconduct’ if we are to ensure the independence of the judiciary, as stipulated in the preamble of the Constitution. 

Moreover, the allegations mentioned in the current motion do not fit the grounds for impeachment as required by Article 101(2) of the constitution. The impeachment motion states that Chief Justice Karki encroached on the jurisdiction of the executive by rejecting the promotion of the IGP. According to the motion, IGP’s appointment is within the exclusive power of the government. 

However, Article 133 of the constitution empowers the Supreme Court to review any executive decision—including the appointment of public officials—if it violates the constitution, the rule of law or established principles of justice. The provision of a judicial review on an executive order is a basic structure of the constitution to maintain the check and balance of power. The Supreme Court has been invoking this provision since the establishment of democracy in Nepal. Hence, the encroachment of the jurisdiction argument is not supported by the current constitution. 

Given the ongoing controversy over the impeachment process, it can only be assumed that the ruling parties—the Nepali Congress and CPN (Maoist Centre)—were in a hurry to suspend the Chief Justice and remove any major obstacles to the appointment of the Deputy Inspector General of Police to the post of the IGP. This is a very unfortunate event for democracy, the rule of law and the independence of the judiciary. Political interference in the judiciary undermines its independence and the rule of law. If immediate steps are not taken to correct this, the damage will be irreparable. 

 

Bandi is an expert on constitutional and international law 

Published: 09-05-2017 08:11

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