मङ्गलबार, ०६ चैत २०७४, १३ : ३०

In Fact: Behind the politics of impeachments in Nepal, a culture of ‘fixed’ appointments

Yubraj Ghimire, Nepal
Back in 1993, Nepal’s House of Representatives received an unusual letter from the Lok Sabha. India’s Parliament was considering an impeachment motion against Supreme Court Justice V Ramaswami, and wanted to gather information from as many countries as possible about the way they had handled similar situations. Nepal did not have any precedents at the time.

Twenty-four years down the line, with radical political changes sweeping Nepal, the country has set a record of sorts by moving two impeachment motions within 6 months — the first, in October 2016, against Lokman Singh Karki, head of the anti-corruption body, Commission of Inquiry into Abuse of Authority and, over the weekend, against Sushila Karki, Nepal’s first woman Chief Justice.

Sushila Karki had just five weeks to go before retirement. Both she and Lokman Singh Karki, who are not related, belong to the town of Biratnagar in eastern Nepal.
Under Nepal’s constitution, a motion for impeachment moved by not less than one-fourth of the total membership of the House leads to the suspension of the person holding the constitutional position. The notice will then be referred to Parliament’s Impeachment Committee, which will scrutinise the charges and make its recommendations to the House. No time limit is specified for its final disposal.

Lokman Singh Karki never got the chance to respond to the charges against him, as a Supreme Court Bench led by Chief Justice Sushila Karki held that he was not qualified for the post in a trial that ran almost parallely.
On October 20, 2016, with Kathmandu agog with speculation that Lokman Singh Karki was about to begin anti-corruption proceedings against top Maoist and Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) leaders, including Maoist chief and Prime Minister Pushpa Kamal Dahal ‘Prachanda’, 157 MPs belonging to the two parties moved against him after office hours, filing an impeachment motion that put him under immediate suspension.

Two days ago, Chief Justice Karki faced a somewhat similar situation — 249 MPs from the ruling coalition of the Nepali Congress and the Maoist Party submitted an impeachment notice to the Parliament secretariat alleging absence of “judicial conduct” on the Chief Justice’s part, and accusing her of encroaching into the domain of the executive.
There was talk that the CJ, who had annulled the appointment by the cabinet of Jay Bahadur Chand as Inspector General of Police, was about to order the elevation of Deputy Inspector General of Police Nabaraj Silwal — who had challenged Chand’s appointment — to the post. There was also speculation that Congress leader Sher Bahadur Deuba, who had criticised the court’s order, would be punished for contempt as the case came up for final hearing on Tuesday.

What makes constitutional posts in Nepal vulnerable to impeachment?

Soon after Nepal went through radical political changes in 2006, its constitution was replaced by an interim one, requiring even sitting judges of the Supreme Court to take oath afresh. A system of parliamentary hearings was introduced, but there were no structural checks to ensure the committee acted in a bipartisan manner. In consequence, those hopeful of appointment as judges felt a need to please parties or leaders in the committee.
The same practice was followed in appointments to other constitutional bodies and ambassadorial positions. Over the years, these bodies, including the judiciary, have come to be packed with party partisans — something that is known as “bhag banda”, or appointments under a ‘quota system’, based on the parties’ strength in Parliament. The working of the ‘system’ was illustrated by the rushing, soon after their appointment, of 13 district judges to the UML office to express their ‘gratitude’. In March 2012, the system was institutionalised further after Supreme Court Chief Justice Khil Raj Regmi took over as chairman of the Council of Ministers, and collaborated with 4 major parties to form the government.

During her parliamentary hearing in August, CJ Karki had said that she had a political background herself — head of a district committee of the student wing of the Nepali Congress — and would not mind people with political affiliations joining the Bench, but “they would have to take off their political shoes before they entered the court”.
As CJ, she bypassed senior colleagues on the Bench and almost always gave crucial assignments to a set of junior judges — including in the cases related to Lokman Singh Karki and appointment of the police chief. Two months ago, more than 300 members of the Bar resigned, alleging lack of fairness in the appointment of 80 judges to newly formed High Courts.

Soon after the CJ’s suspension, and the elevation of the seniormost judge, Gopal Parajuli, as officiating CJ, there was talk that the UML, which had come out in Karki’s defence, would move an impeachment motion against Parajuli as well. A senior UML leader, however, told this paper that party chief and former Prime Minister K P Oli had personally intervened to stay the move. The party had decided to instead fight the government on the streets and in Parliament if the impeachment motion was not withdrawn.

Karki has said she will fight the crisis, but whether she will actually get a chance to defend herself remains to be seen. Nepal’s already unstable politics is made extra chaotic by widespread political bhag banda. Appointees to constitutional posts are rendered vulnerable as political equations that prevailed at the time they were appointed, change; and the merit or substance of allegations are frequently overshadowed by political considerations.