House prorogation stalls prospect of chief justice being impeached for now

The judiciary is deadlocked. Supreme Court justices and the legal fraternity have ganged up on Chief Justice Cholendra Shumsher Rana demanding his resignation. They argue that the judiciary’s image has been tarnished under his leadership and its reforms cannot begin without his resignation. However, Rana has refused to step down, leaving impeachment as the only option left to remove him. However, no party is ready to register an impeachment motion.

Amid the deadlock, the government has recommended ending the ongoing session of the federal parliament ending the prospect of impeachment anytime soon. Though the impeachment motion can be registered even when the House is not in session, it cannot move forward.

Amid the deepening crisis, the Post explains the process of judges and justice selection and the process of their removal.

How are judges and justices appointed?

The President on the recommendation of the Constitutional Council appoints chief justice while other justices of the Supreme Court are appointed by the head of state on the recommendation of the Judicial Council. A person who has served as Supreme Court justice for more than three years is eligible for appointment as chief justice. Generally, the chief justice is appointed from among the senior-most justices.

Justices are appointed from two categories. First, from among seniormost judges of high courts and second, from among the advocates who have a minimum of bachelor’s degree and have practiced law for at least 15 years. Likewise, seniormost judges from district courts, gazetted first class officers from the judicial service and advocates who have practiced law for at least a decade are appointed as high court judges on the recommendation of the Judicial Council.

Similarly, for district court judges, 20 percent of the seats are reserved for gazetted second class officers from the judicial service based on their performance, 40 percent of the seats are filled through competition among officers of the judicial service and the remaining 40 percent seats are filled through an open competition. And the appointments are made on the basis of the recommendation of the Judicial Council, which is led by the chief justice.

What are the processes to impeach chief justice?

Impeachment is a way to remove the chief justice, justices, members of the Judicial Council and chiefs and members of constitutional commissions when they fail to fulfil their duties of office because of serious violation of the constitution and laws, and when they fail to demonstrate competency in work and discharge the duties of office honestly.

Article 101 (2) of the constitution allows one fourth of the existing members of the House of Representatives to register an impeachment motion. The chief justice, justice or those who got appointments in the constitutional bodies against whom an impeachment motion has been brought, are not allowed to discharge their duties until the motion is settled. The impeachment motion has to be endorsed by a two-thirds majority of the House of Representatives.

However, the impeachment motion is tabled for discussion only after an impeachment recommendation committee of the lower house examines whether there are ample grounds for impeachment. An eleven-member committee is formed once the impeachment motion is registered at the Parliament Secretariat. Roj Nath Pandey, spokesperson at the secretariat, said the motion can be registered even when the House is not in session. However, the parliament has to be in session for forming the impeachment recommendation committee, discussing the motion and for putting the motion to vote.

As the government has already recommended the prorogation of the federal parliament, it is not possible to decide on the impeachment motion anytime soon even if it gets registered. Only the CPN-UML as a single party has the strength to register the motion and its support is a must for its endorsement.

Which is the responsible body to take actions or warn judges and justices?

It is the Judicial Council’s responsibility to investigate wrongdoings of judges and justices and take action. The council can even sack judges of lower courts. Article 153 of the constitution authorises the council to take disciplinary action against justices and even sack judges.

However, except in very few incidents, the council has failed to perform its role to check the wrongdoings and misconduct of justices and judges. In the chief justice-led five-member council, members with political backgrounds are in majority.

What is the impact of the ongoing tussle?

The Supreme Court has been paralysed for the last four days. Except for hearing five cases by a single bench of Chief Justice Rana on Wednesday, no other hearing has been conducted in the last four days. Hearings on 872 cases, which have been pending for more than a decade, have been deferred due to the boycott of benches by justices and lawyers. As a result, justice seekers have suffered. Their anger has grown against the judiciary while it has also increased pessimism. Constitutional experts say the lingering deadlock will ultimately degrade people’s faith in the judiciary.

Bipin Adhikari, former dean at the Kathmandu University School of Law, said it is unfortunate that the judiciary has been mired in a serious controversy, while people have little faith in the executive and the judiciary. He said the sooner the problem is resolved, the lesser will be the loss the judiciary will face. “Rana is the root cause of the present problem. His exit from the judiciary is the only way to end the present logjam and maintain its dignity,” he said.