External Affairs

Why the Impeachment Motion Against Nepal's Chief Justice Is All Wrong

Sher Bahadur Deuba, widely seen as Nepal's prime minister-in-waiting and the supposed mastermind of the impeachment motion, has disgraced himself by meddling with the judiciary.

Kathmandu: It is not hard to see the malafide intent behind the impeachment motion the two major constituent parties of the ruling coalition – Nepali Congress and Communist Party of Nepal (Unity Center) – have brought against Nepal’s chief justice, Sushila Karki. The first woman chief justice of Nepal was suspended with immediate effect after 249 lawmakers from the two parties filed an impeachment motion against her in the national parliament on April 30. As per the constitution, the chief justice is immediately suspended if at least 25% of lawmakers file an impeachment motion.

Justice Karki had only a little over a month to go before she would have been forced to take voluntary retirement on the basis of her age. So why the haste? She was a headstrong and fearless chief justice. It was Justice Karki’s court that declared Lokman Singh Karki (no relation to the judge), the footloose chief of CIAA, the country’s chief anti-corruption body, incompetent and threw him out of office. Lokman Singh had accumulated so much power that it was often said that the CIAA head office in Kathmandu was more powerful than Singhadurbar, the seat of Nepal’s government. It is hard to think of any other chief justice who could have so openly challenged Lokman Singh.

Even on the day the impeachment motion was registered against Justice Karki, she had successfully prosecuted three former heads of the Nepal police on corruption charges. The intrepid judge was clearly starting to step on the toes of some powerful interests. Thus there was great fear that in the remaining one month of her tenure, Justice Karki could bring down many other powerful politicians and vested interests close to the ruling parties.

Deuba’s demolition job

According to legal experts, Justice Karki had done nothing to deserve impeachment. None of the charges that have been levelled against her – that she interfered with the functioning of the executive, that she was biased in her choice of judges to preside over important cases, that she was guided by “ulterior motives” in justice delivery, that she encouraged groupism in the judiciary – have been substantiated. In fact, almost all those in the know find big holes in each of these allegations.

Sher Bahadur Deuba, president of Nepali Congress, the largest parliamentary party, is widely believed to have been the architect of the impeachment motion. He was particularly unhappy with the verdict of the chief justice-led bench that dismissed the newly-appointed chief of the Nepal police, Jaya Bahadur Chand, who was Deuba’s pick. The court ruled that the government had violated established norms in his appointment. The court also, in effect, cleared the way for Nawaraj Silwal, another contender, to assume the top police post.

But this posed another problem. After the court had rejected Chand’s appointment as police chief, the government had already appointed Prakash Aryal in his place. But, according to court ruling, Silwal should have gotten the job. Deuba and Prime Minister Pushpa Kamal Dahal ‘Prachanda’ decided to act before the Supreme Court had a chance to intervene with Aryal’s appointment, and hence the impeachment motion.

Both Deuba and Prachanda, the leader of CPN (Maoist Center), had repeatedly tried to contact Justice Karki and make her rethink her decision to ‘trample on’ the executive’s prerogative. But she was adamant. According to reports, she declined to talk to either Deuba or Dahal on the phone, which, as a judge presiding over a sub-judice case, was the right thing to do. But the rather impulsive Deuba had, by this time, had enough.

Prachanda decided to go along with Deuba because Justice Karki had already presided over a judgment that asked the government not to provide amnesty to Maoist leader Balkrishna Dhungel. Dhungel had been convicted of a cold-blooded murder in a case brought at the time of the Maoist insurgency. He has been absconding since, trying to evade his life sentence.

The government of Baburam Bhattarai had in 2011 decided to give him amnesty, but failed to do so after the Supreme Court intervened.

Come 2017, Prachanda was afraid that more senior Maoist leaders could be implicated on war crimes by the Justice Karki-led court even in the short time she had left.

The impeachment motion has ensured that Justice Karki will not be able to resume her duties because impeachment is a long process and Karki has just over a month of her tenure left. Since two-thirds parliamentary majority is required to impeach the chief justice, which the ruling coalition does not have, the goal, it seems, was never to impeach her, but only to prevent her from carrying out her duties until the time she was forced to retire.

Controlling the damage

While almost all legal scholars in Nepal agree that the impeachment motion was unjustified, they differ on what should be done in its wake.

Dipendra Jha, an advocate at the Supreme Court, says there is no alternative to reviewing Article 101 (6) of the constitution, which provisions for immediate suspension of the chief justice if an impeachment motion is brought by a quarter of the MPs.

“The chief justice should be suspended only if an impartial investigation finds prima facie evidence of misconduct,” Jha told The Wire. “Otherwise, if we retain the current provision, no body is safe. Today, Congress and Maoists have suspended Karki; tomorrow, UML [the second biggest party in parliament] may decide to impeach Gopal Parajuli [the new acting chief justice] just because it doesn’t like Parajuli.”

“There will be no end to this madness,” he said.

Bipin Adhikari, a constitutional lawyer, disagrees. “I am not in favour of chopping and changing the constitution,” he told The Wire. “And I don’t think it’s a case of a faulty constitution. It has more to do with the intent of the political parties. If our major political actors have no morals and if they simply refuse to abide by the principles of separation of powers and check and balance, then it really doesn’t matter what kind of constitutional provisions we have.”

Adhikari believes that the impeachment motion against Justice Karki has already done irreparable damage to Nepali democracy. He doesn’t see much hope unless the corrupt political culture changes.

It seems the ruling coalition failed to anticipate the huge backlash an impeachment motion against a judge of impeccable character and conduct like Karki could invite. The opposition parties say they won’t allow the house to function unless the government takes back the impeachment motion. Civil society is also up in arms, as is nearly the entire legal fraternity.

The country’s attention has been deflected somewhat with the approaching May 14 local election. But all signs suggest that the ruling coalition will continue to be besieged far into the future for its decision to impeach a sitting chief justice and without any seemingly good reason.

Meanwhile, the public image of Deuba, which was never favourable, has been further tarnished. Although Prachanda will also have to shoulder the blame, most of the mud from the impeachment imbroglio will stick on Deuba. He is widely seen as the prime minister-in-waiting, poised to take over from Prachanda at the end of the local election. Deuba will preside over the same coalition, if it can survive the impeachment saga – important coalition partners are already abandoning the government.

In another intriguing twist to the impeachment drama, the Supreme Court on May 5 directed the government not to press ahead with the impeachment motion and called on Justice Karki to immediately resume her job as chief justice. This verdict has ensured that the battle between the executive and the judiciary will only intensify in the days ahead.

One thing is for sure: with the chief justice controversy hanging over him and entrusted as he will be after becoming prime minister with holding both provincial and federal elections within nine months, Deuba, already a three-time prime minister, is sure to face his toughest test yet.

Biswas Baral is a Kathmandu-based journalist who mostly writes on Nepal’s foreign policy. He tweets @biswasktm.