Travesty Of Judicial Independence



Dr. Narad Bharadwaj

The motion of impeachment tabled against Chief Justice Sushila Karki will go down as the darkest day in judicial history of Nepal. This is going to be recorded as one of the most injudicious act committed at higher political level with attendant risk of putting the judiciary and the executive on a collision course.   As the wave set off by the impeachment motion moved by the coalition government threatens to sweep off the last remaining pillar of the separation of power, a real possibility of counter revolutionary revival has also emerged in the country.

Arbitrary exercise

The impeachment motion tabled at the parliament Sunday by the ruling coalition accuses the Chief Justice of encroaching into the jurisdiction of the Executive and having a conduct not in conformity with her position. The motion of impeachment has proved that despite its being one of the powerful tools to curb the growth of arbitrary exercise of judicial power, it is also vulnerable to misuse and manipulation.  This incident has also proved that, the enemies of democracy are up and about to deliver a mortal blow at the vital organs of the democratic system to facilitate the restoration of the retrogressive forces overthrown in the great popular revolts spanning the past three decades.

The motion of impeachment has come in a very difficult phase of constitutional development.  This has been resorted to at a time when both the Executive and the Legislature are functioning under transitional mechanism and are in need of constant supervision of the Judiciary which is the only functional and permanent institution existing in the country. During the past decades characterised by instability it is the only institution that has remained unaffected by political upheavals. There were times when political attempts were made to manipulate judiciary for gaining political advantage. There were also instances of controversial verdict on political issues deviating from judicial principles of fair justice. But the Judiciary mainly remained on course through the tumult of times.

The most glaring instance of such a deviation was the judicial verdict of former chief justice Biswanath Upadhya who had restored the parliament dissolved by former Prime Minister Manmohan Adhikari in 2052 B.S. going against the established democratic principles governing the prerogatives of an elected prime minister and the norms and values of parliamentary democracy. In an unprecedented verdict, the Supreme Court had over-ruled its own precedence and incurred the infamy of inducing a prolonged political instability. The country is still suffering from the after-effects of that judicial transgression.

It is a common knowledge that the three organs of state, the Judiciary, the Legislature and the Executive exist in a delicate balancing act. If one organ loses the sense of interdependence, the other two organs will be paralysed in no time.  Political power always lives under the illusion of relative supremacy, but in practice it is like a boiling cauldron sitting precariously atop a tripod which can tumble down with a catastrophic consequence if all of its three legs are not based on a level ground.

 Now, the Executive has not only committed a serious transgression into the jurisdiction of the judiciary, but has also delivered a mortal blow at its own moral standing. The timing and context in which the motion has been tabled shows that the coalition government wants not only impunity for its unpopular and unlawful decisions, but also wants to bring about a general collapse of the judicial institution.

It is not necessary to investigate deeply to discover that the impeachment motion was a deceptive act of the ruling coalition to paralyse the principle of judicial independence. Impeachment is an ultimate weapon of self-defence provided to the elected executive by the constitution to prevent the misuse of power by constitutional bodies. But it used it in a derelict way against a wrong target in an inappropriate time. The impeachment motion exposed the Executive’s breach of moral principle on the rule of engagement just as the  negligent use of serpent arrow ‘Ashwaishan’   by warrior Karna  against Arjuna in a wrong time  had exposed his moral turpitude giving  incontestably higher pedestal to  invincible Arjuna in the battle of Mahabharata. 

The motion has been brought just five weeks before the date of retirement of the Chief Justice. The very intention of the motion was to subject the Chief Justice to humiliation and to pave way for her automatic suspension preventing her from hearing some high profile cases of corruption and violation of human rights.

Article 101 (2) of the Constitution of Nepal has a provision for moving impeachment motion against the Chief Justice in the event of “serious violation of the constitution and law, his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason.”

But the motion of impeachment against Chief Justice of Nepal did not meet any of the above conditions. The Chief Justice was at the pinnacle of popularity and was doing the nation proud by building a crystal-clean image for the Judiciary. Some of the landmark decisions made by the Supreme Court under her leadership had put her on an enviable pedestal of judicial career.

The misuse of the constitutional provision by the ruling coalition for moving impeachment motion against the Chief Justice has brought to focus on the International Commission  of Jurists (ICJ)’s  warning that the impeachment provision of the Constitution of Nepal 2015 did not meet the ‘standard on the independence of the judiciary’. This shows that the constitution has loopholes which can be misused to subvert judicial independence.

The impeachment motion might have given temporary advantage to the Executive. But it will do well to check historical precedence on how politicians may be victimised in the absence of powerful judiciary to protect people’s fundamental and human rights. There are instances in which politicians have been sent to jail on charge of sodomy, have been put in confinement for twenty-seven years for holding dissenting views and have been subjected to summary execution for advocating reforms. They should understand that only the existence of an independent judiciary can help avert such situation in a democracy. In the absence of powerful judiciary, the first heads to roll down will be of senior politicians.

 The ruling coalition has been stumbling along taking one misjudged step after another.  No sooner is it forced to correct its course from one aberration then it lapses into another grave deviation. With its undemocratic and unpopular exercise of power, the ruling coalition is dragging the country to situation of chaos and anarchy.

At a time when the country is in need of focusing its total attention on holding election of the local bodies, the government of CPN (Maoist) and Nepali Congress appears to be indulging in a costly political gamble with a hope of achieving a monopoly over the state power by eliminating dissidents and squandering  resources.  But the path it has chosen is not a freeway for a reckless ride to unchallenged supremacy.

The uproar which its attack on judicial independence has created at home and abroad should be clear enough signal that people are not likely to take defeat lying down. They will surely stand up as an insurmountable barrier against authoritarianism if their freedom of choice comes under a real threat.

Sanctity of judiciary

The impeachment motion has been moved by minority members of the parliament. It is sure to be rejected by the extended session of the parliament when it is eventually put before it for discussion and endorsement. The coalition government is in an awkward situation. If it has any sense of honour, it should refrain from moving any further along the catastrophic course of action by withdrawing the motion so that the sanctity of Judiciary remains untainted.   

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