Mockery Of Rule Of Law

 

 

Kushal Pokharel

In the latest round of political events shaking the nation, the two major parties in the ruling coalition, the Nepali Congress and the Maoist Centre, have registered an impeachment motion against the Chief Justice alleging her of undue interference in the executive affairs of the government.

However, accusation against the suspended Chief Justice of breaching the constitutional principle of separation of power holds little ground. While this principle clearly says that the three organs of the government: the legislature, the executive and the judiciary are independent to exercise their functions, there is an embedded notion of check and balance in it providing a greater role for judiciary to adjudicate the dispute arising in the functioning of the legislature and the executive.

Unprecedented

At a time when the entire nation was bracing for the local elections, an unprecedented event in the history of Nepal’s judiciary has emerged sparking debate and discussion over the future course of politics, including the fate of the local poll. Particularly, the public fury against this decision has been strong with around two thousand people including eminent professionals from different walks of life staging a peaceful civil protest in Kathmandu a day after the government’s decision to impeach the Chief Justice. With this move, the public image of the main leaders of the respective political parties has aggravated further posing a serious question mark over their unflinching faith to democracy, rule of law and independent judiciary. 

The impeachment not only comes at the wrong time, but also attempts to derail the democratic process. In fact, it is difficult to believe that this action hasn’t come with an intention of demolishing the independent judiciary thereby attacking the cardinal principles of constitutionalism, rule of law and democratic governance. This is evidenced by the fact that the government, bypassing its own regulation in the nomination of IGP has shown undue interest to appoint relatively less deserving police officer to the post. 

In fact, the obsession of the Nepali Congress president to name a particular police officer as an IGP became so dominant that it invoked great anger in him when the Supreme Court decided against his will. Obviously, nothing can bar the investigation of the performance of the Chief Justice in the IGP row  as permitted by the law, but at present there is lack of sufficient evidence to convict her guilty.

The functions of the Chief Justice can be reviewed through judicial procedure generating wider discussion among the legal fraternity in case of any suspicion or charge of guilt. Furthermore, without generating public discourse in the parliament and the civil society circle- a widely accepted international practice before registering an impeachment motion against key state officials in any democratic country, this time the motion has come with the intention of making the judicial system defunct because it defied the instruction of the political executives to give verdict in their favour and failed to serve the partisan interests of a handful of leaders and their loyal henchmen. Otherwise, why would any government be so impatient to sack a respected head of judiciary who was planning to be on leave few weeks before formal retirement. At a time when the hearing on the writ petition filed by DIG Silwal challenging the government’s decision on IGP appointment was inching closer, the government seems to have secretly plotted to tarnish the image of a towering judge.   

Renowned for her professional integrity and zero tolerance to corruption, the sacked chief justice is seen as a symbol of valor in her close circle. In fact, she accorded due priority to corruption cases while at office, the latest one being the imprisonment of three former IGPs  in the Sudan scam.  During her tenure as the Chief Justice, the popular decision to dismiss CIAA chief Lokman Singh Karki deeming his qualifications inadequate for the coveted post was highly appreciated by the general public though a section of the society considered it as biased and politically sponsored but without any evidence.

What is noticeable here is the manner in which the impeachment motion has been lodged in the parliament. Although Article 101 of the Constitution of Nepal has a provision of impeachment for sacking the chief of the constitutional bodies including the Chief Justice, the Prime Minister and the President in case of the violation of the constitution and law, lack of professional integrity or defiance of the code of conduct concerning a particular post, the government opted a non-transparent way to table this proposal in the parliament. With some of the leaders of the Nepali Congress publicly stating that their signature has been misused without informing them in this case, one can clearly smell a rat in this incident.

Moral crisis

Resolving this issue has become very complicated now for the government which will be in a serious moral crisis if the parliament fails to endorse the impeachment motion by two-thirds majority. In the absence of support from the CPN-UML and even RPP-N withdrawing from the government, it is impossible for the government to pass this motion. The current scenario clearly indicates that the government’s decision is going to be a matter of great embarrassment for it’s own cabinet pushing the Prime Minister further to step down . 

 

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