By moving an impeachment motion against the chief justice before DIG Navaraj Silwal’s second petition was even heard, the government started a cold war with the Supreme Court. The court fired back by staying the motion.
As a student of law, I view the constitution and due process of law as sacrosanct. Therefore, I have no doubt that the government is on the wrong side. If the wrong side wins this war, you and I will lose our rights and freedoms.
It is important that we are not misled by the tons of government propaganda out there justifying the motion. If you look at the sequence of events and the constitutional provisions, you would know the truth.
First, the sequence. The government promoted DIG Jaya Bahadur Chand to the inspector general of police (IGP), and his competitor, Navaraj Silwal, appealed to the Supreme Court. The court gave its verdict in Silwal’s favor, but the government hastily appointed another DIG, Prakash Aryal, to the post.
Silwal knocked the court’s door with a second petition, and the court accepted it to examine. Angered by this, the ruling coalition filed an impeachment motion in the parliament against Chief Justice Sushila Karki, before the court had heard the case. The motion resulted in Karki’s suspension.
Essentially, the coalition argued that Karki encroached upon the executive branch’s turf by accepting Silwal’s second petition.
All dictatorships start by trampling the constitution and rule of law and silencing courts and by arrogating unlimited power to themselves. The impeachment of Chief Justice Sushila Karki looks like the first step in that direction.
Ruling on a case filed by two lawyers, Justice Cholendra Rana stayed the motion and ordered Karki’s reinstatement, citing that the motion based on a sub judice case violated the constitution. Karki returned to work. In response, the government has hinted that it would punish Rana for the breach of the parliament’s privilege to impeach justices.
Here is what the constitution of Nepal 2015 says:
Article 126: Everyone should abide by the Supreme Court’s decision in any legal case.
Article 128 (2): The Supreme Court will be the final interpreter of Nepal’s constitution and law.
Article 133: The Supreme Court has the exceptional authority to provide legal remedies, only limited by the impeachment motion moved against the justices in the legislative bodies.
Section (3): The Supreme Court can review its own decision.
Article 101 (2): 1/4 members of parliament can move the motion of impeachment against the chief justice or justice of the Supreme Court if they fail to fulfill his duties because of serious violation of this Constitution and law, incompetence or misconduct or failure and honestly or serious violation of the code of conduct.
Section (6): Once the motion is moved, the chief justice or justice of the Supreme Court would not be able to discharge his duties.
Article 103 (7) and (8): The legislature has the authority to punish anyone who undermines its privileges.
Article 105: The legislature cannot discuss anything sub judice case or anything said or done in the course of giving justice unless it is considering an impeachment motion against a judge.
In summary, the court is the final interpreter of law, and it has the obligation to protect citizens’ rights. It is the duty of everyone to abide by the court’s verdict. If someone disagrees with the verdict, they should ask the court for a review.
The parliament must not discuss any sub judice case or the conduct of a justice therein unless it is discussing the impeachment motion against the justice.
Evidently, the ruling parties have breached the due process at several levels.
First, they introduced a sub judice case for discussion in the house, which is prohibited by the constitution.
Second, they moved the impeachment motion on speculation that the court would decide against the government, and without exhausting the review remedy.
It is against natural justice, principles of jurisprudence, practice in other democratic countries, and Nepal’s own constitution to charge anyone of crime before one has been committed.
Besides, though Karki has not been above reproach — for instance, in the recent appointment of several judges — her faults were not serious enough to meet the threshold set for impeachment under Article 101 (2).
If the same standards were applied to them as to Karki, most of the politicians who moved the impeachment motion would be in jail. They have committed infinitely more horrendous crimes of corruption, incompetence, dishonesty, handing democracy to the palace, and compromising national interest with foreign powers for personal gains than Karki.
Natural justice and principles of jurisprudence call for proportionate punishment for all crimes. However, the ruling coalition has vengefully applied a disproportionate measure to silence Karki and the judiciary. You do not fire a nuclear bomb to kill an irritating nanny.
Justice Rana’s stay order prevented the injustice of punishing Karki before she has committed a crime and put the process in its right order. Therefore, it is preposterous for the ruling parties to suggest, as they have done, that Rana should be punished for breaching the parliament’s privilege.
Faced with the strong opposition from the opposition parties, civil society, and the United Nations, the government has put the motion on hold, and the Parliament has postponed its meetings until after the local elections due on 14 May 2017. This is a temporary ceasefire.
The question arises, why have the leaders become vengeful towards Sushila Karki and the Supreme Court?
The answer is a no-brainer. Nepali Congress leader Sher Bahadur Deuba and Maoist leader and Prime Minister Pushpa Kamal Dahal have been shielding themselves and their close supporters from the music of justice for their crimes. They are angry with Karki because:
–She instructed the government to arrest within 7 days Balkrishna Dhungel, a Maoist leader sentenced to jail for the murder of Ujjain Shrestha, who is hiding in plain sight under the protection of his party’s senior leaders. The court can slap the government with the contempt of court for not arresting Dhungel.
–She handed the court’s verdict on the Sudan procurement scandal and sentenced three former police chiefs to jail.
–She expedited the corruption cases against the political leaders that were pending for ages in the court.
Deuba should be held to higher standards than Dahal for starting the cold war. Deuba has fought for democracy and been to jail, and the Supreme Court had him released from prison not long ago. But power seems to have blinded him now.
For Dahal, it is only one more opportunity to destroy democracy and its institutions. Just to achieve that goal, he had conducted the Maoist insurgency for 10 years and spilled the blood of 17,000 people.
Remember, an activist court is much less dangerous than a reckless government with bureaucracy and treasury at its disposal. If we love our democracy and our rights, we must not support the wrong side — government — in this cold war.