Questions remain what happens if House expires before his retirement. Some experts argue he can return to office.
The impeachment motion against Chief Justice Cholendra Shumsher Rana has remained pending at the Parliament Secretariat for nearly five months now. Except for forming the Impeachment Recommendation Committee, the House of Representatives has not taken any step to decide on the motion. Rana has remained suspended since February 13, the day the motion was registered at the Parliament Secretariat.
As many as 98 lawmakers from three ruling parties—Nepali Congress, CPN (Maoist Centre) and CPN (Unified Socialist)—had registered the motion levelling 21 charges that he promoted corruption and facilitated the entry of middlemen in the judiciary, failed to maintain the dignity of the judiciary and misused the constitutional responsibility by demanding a share in the government, among others.
Even though the recommendation committee was formed, the lower house is reluctant to send the motion to the committee to study the allegations. The main opposition CPN-UML has been demanding that the motion be forwarded to the recommendation committee without delay.
“It is the responsibility of the House to decide on the motion. Let it decide whether it endorses or not,” Bishal Bhattarai, chief whip of the UML, told the Post. “The judiciary must not be kept rudderless for long.”
Deepak Kumar Karki has been leading the Supreme Court as the acting chief justice.
Rana, who was appointed chief justice on January 2, 2019, will retire on December 12 on the grounds of age.
Questions, however, have emerged as to what will be the status of Rana if the current term of the House ends before his retirement.
The Election Commission has said it is for holding the federal and provincial polls by the third week of November.
There is no legal clarity as to how long the lower house can function after the election date is announced. However, even if it continues until one day prior to the elections, say in the third week of November, there will be more than three weeks before Rana retires. Even if the House term is not ended immediately after the elections are announced, it won’t exist from the day of voting.
Article 111 (10) of the constitution says if the House of Representatives is dissolved or its term expires when any bill is under its consideration or when any bill passed by the House of Representatives is under consideration in the National Assembly, such bill shall lapse. However, the constitution doesn’t say anything about the status of the impeachment motion.
Radheshyam Adhikari, a former member of the National Assembly who is also a senior advocate, said the framers of the constitution couldn’t envision a situation like this where the tenure of the House expires without deciding on an impeachment motion.
“This is a case of sheer lack of accountability of political parties. The motion cannot be kept pending without taking it forward to a vote,” he told the Post. “There is no clarity as to what happens to the motion and what will be the status of Rana after the present House comes to an end.”
Officials at the Parliament Secretariat say similar to other bills, the impeachment motion too will become void once the tenure of the present House comes to an end.
“I think the impeachment motion cannot be transferred to the new House of Representatives,” Rojnath Pande, a spokesperson for the Parliament Secretariat, told the Post.
But even if the motion is forwarded to the new House, assuming that it can be transferred, there will be a gap between the day the voting takes place and the new House is formed. Going by the assumption that voting will take place in the third week of November, questions remain what will happen if Rana decides to return to office a day after voting, as the impeachment motion will remain in a state of limbo.
If the motion becomes void like any other bills once the term of the present House ends, Rana has that window to return to office, according to constitutional experts.
“I don’t think there will be any legal barrier for Rana to return to his office if the tenure of the lower house expires without endorsing the impeachment motion against him,” Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, told the Post. “However, the Supreme Court administration can ask him to seek legal clarity by filing a petition in the court before resuming office.”
Adhikari says the way the parties are delaying to act on the motion by not commencing the impeachment proceedings gives ample room to suspect that there is some understanding between the parties and Rana.
“The understanding could be that the parties won’t impeach him and will be allowed to retire as chief justice and that he doesn’t attempt to return to work,” said Adhikari. “Otherwise there is no reason to keep the motion pending for months. This is a wrong practice the ruling parties are setting.”
Experts have long said that although the constitution allows filing an impeachment motion against the chief justice, Nepali parties have misused the provision.
As per Article 101 (2) of the constitution, one fourth of the total number of the then members of the House of Representatives can move a motion of impeachment against the chief justice on the ground of his or her failure to fulfill his/her duties of office because of serious violation of the constitution and law, incompetence or misconduct or failure to discharge the duties of office honestly or serious violation of the code of conduct.
Earlier in April 2017 also, the Nepali Congress and the CPN (Maoist Centre) had filed an impeachment motion against then chief justice Sushila Karki, leading to her suspension. But before the impeachment motion could be proceeded, the Supreme Court had quashed it following which Karki had returned to work. It was a Rana-led bench that had quashed the impeachment motion.
But there is also confusion whether the person against whom impeachment motion gets suspended immediately after the motion is registered at the Parliament Secretariat.
Constitutional experts say the suspension of Rana should have come into effect only after the commencement of the impeachment proceedings as per Article 101 (6).
“Commencement of the proceeding is deemed to have begun only after the impeachment motion is presented in the House which is yet to happen,” said Adhikari. “The Parliament Secretariat wrote to the Supreme Court immediately after the impeachment motion was registered leading to Rana’s suspension. That is against the spirit of the constitution.”
Rana has been the most controversial figure in the history of Nepal’s judiciary. In October last year the justices of the Supreme Court started their protests by boycotting a full court meeting called by Rana. They consequently boycotted the benches regularly.
Lawyers had held protests for months boycotting the benches and organising a series of protests on the premises of the Supreme Court. Their protest concluded only after the impeachment motion was registered at the Parliament Secretariat.
Political parties, however, dragged their feet even as calls grew for them to file an impeachment motion against Rana. But on February 13, three ruling parties moved the motion suddenly, for which they have failed to offer any convincing justification.
Experts have told the Post in the past that it’s incumbent upon the parties that sought to impeach Rana press for initiating the impeachment proceedings.
On whether there’s room for Rana to return to work, some say no.
Former chief justice Anup Raj Sharma, however, says Rana cannot return to office regardless of the expiry of the term of the House because the serious allegations he faces continue to remain on record.
“In my opinion, the motion will get continuation in the next parliament as well. Many countries have such practice,” he told the Post. “Rana cannot return to the Supreme Court until he comes clean.” Rana will retire as chief justice and will be getting post-retirement benefits accordingly if the House fails to take decision in the motion before his retirement.
Rana refused to say anything on the issue.
“I have no comments,” he said.
