The House of Representatives (HoR) on Sunday has sent the impeachment motion against Chief Justice (CJ) Cholendra Shumsher Rana to the impeachment recommendation committee for discussion.
But the impeachment process does not look likely to conclude as it has to be passed by two-thirds of the HoR members even though registering one requires just 25 percent of lawmakers.
A total of 98 ruling HoR members from the ruling coalition had registered the impeachment motion against CJ Rana on February 13. He has been suspended since then.
The ruling coalition needs support from the main opposition CPN-UML, which has more than one-third of lawmakers, to pass the motion. UML has been against registration of the impeachment motion right from the beginning and is highly unlikely to vote to pass the motion.
The ruling coalition, therefore, seems to have adopted the strategy of stretching the impeachment process until Rana retires on December 13.
With the government announcing to hold the next general election on November 20, the term of current House will end before Rana’s retirement.
The Constitution does not have a clear provision about the state of House after announcement of the next election and constitutional experts believe it has to be automatically dissolved after announcement of election.
But the House meeting is being held even after announcement of the election date and the government says its term will end a day before filing of candidacy for the election.
The Election Commission is preparing to make the schedule in a way that candidacy is filed immediately after the Dashain festival which falls at the start of October this year.
All the motions registered in the HoR generally become obsolete as the new HoR members elected after the fresh election do not move the old bills and motions forward.
Some say the impeachment motion registered against CJ Rana in the current HoR will also become obsolete after end of the current HoR’s term. CJ Rana, therefore, technically can then return for duty after filing of nominations for the election. He can serve as CJ for almost two months if that were to happen.
Chief Election Commissioner (CEC) Dinesh Kumar Thapaliya has said that the term of current HoR members will end ONLY on December 7.
Thapaliya has pointed that the term of current lawmakers start from the day they get elected and it, therefore, will continue until December 7. The last federal and parliamentary elections were held in two stages on November 26 and December 7, 2017.
He has added that the Election Commission had submitted a five-page document clarifying that.
Rana, who is known to have told his confidants that he will return to office even if for just one day, therefore can return as the head of the judiciary for around a week even if the term of HoR were to end only on December 7 if he so wishes.
But former Supreme Court (SC) justice Balaram KC argues that the impeachment motion against Rana will not end even if the HoR’s term ends, and the newly elected HoR will resume the impeachment process against Rana.
There is no constitutional or legal provision clarifying what happens if the impeachment process does not end before the election for next HoR. But KC points to a precedent in India where impeachment process against a SC justice initiated in the previous Lok Sabha was continued by the newly elected Lok Sabha even though there was no constitutional clarity about continuation of the process over to the next Lok Sabha as in Nepal, and opines that the impeachment motion against CJ Rana similarly should be continued by the next HoR.
“The impeachment motion does not die merely because of election. Our lwas do not speak about that. We, therefore, have to look at the Indian examples as we don’t have laws about that,” KC stresses.
An impeachment motion was lodged against the then Indian SC Justice Veeraswami Ramaswami in 1991 accusing him of extravagance at the cost of the exchequer and other charges while he served as chief justice of the Punjab and Haryana High Court before being promoted to the SC.
The LoK Sabha was dissolved after Congress (I) withdrew support from the Chandra Shekhar government and fresh elections were announced.
The new Lok Sabha formed after the election continued the impeachment process against justice Ramaswami. Ramaswami, however, survived the impeachment process as lawmakers of Congress (I), that had returned to power following assassination of Congress (I) leader Rajiv Gandhi, abstained during the voting process.
Ramaswami, with connection to Congress (I), had reportedly given his word that he would resign if the motion was not passed. But he did not resign even after parliamentary reprieve. But he was not allotted any case till he retired a year later.
“If anyone says Rana can be brought back to the SC after end of the HoR term, I have a counter question. Those persons should argue that any bill registered in the House also should immediately become laws if they interpret so,” KC adds
The HoR still has sufficient time to conclude the impeachment process against Rana before the election. But the ruling coalition aided by Speaker Agni Sapkota, who comes from CPN (Maoist Center) that is in the coalition, wants to extend the process.
The coalition, without support of UML, does not have the numbers to pass the impeachment motion. But it cannot afford to go to the election immediately after failing to impeach Rana with moral questions hanging as to why the coalition registered the impeachment motion that looked destined to fail right from the time of registration.
The coalition, therefore, would look to extend the impeachment process. A source close to Speaker Sapkota confides that Sapkota also believes that Rana cannot return to office once the term of the current HoR ends.
“On what grounds will Rana return to the SC? How would the SC know whether the impeachment motion registered in the House has become deactivated or not without the House writing to the SC to that regard?” the source asks.
