Kathmandu, November 2
The ruling Rastriya Swatantra Party (RSP) is holding internal discussions on whether to move an impeachment motion against Supreme Court justices after questions were raised about their conduct. However, the party has yet to decide how to proceed.
RSP spokesperson Jagadish Kharel says issues concerning the judiciary should be addressed through Parliament.
“If we are to restructure the entire judicial sector, Parliament is the constitutional avenue for doing so. The process should move forward through Parliament,” he said.
The RSP secretariat has also directed its parliamentary party to initiate the process through Parliament. However, the parliamentary party has yet to begin discussions on the next course of action.
The party’s secretariat meeting was held on Saturday. After the meeting, journalists asked Kharel whether the party would pursue impeachment or opt only for an investigation.
In response, he said the parliamentary committee would decide the matter.
“The party has felt that this sector [the judiciary] also needs to be restructured,” he said.
Questions have emerged following revelations about the relationship and exchanges of messages between Supreme Court justices and Inam Sapkota, a controversial figure. Details of communications and financial transactions between Sapkota and the chief justice, other justices and senior police officials have reportedly emerged from his mobile phone and other electronic devices. There have also been reports that seven justices met Sapkota collectively.
Against this backdrop, the ruling RSP has been holding formal and informal discussions on the possible ways forward.
Under the Constitution, there are two ways to initiate impeachment proceedings against the chief justice or Supreme Court justices, members of the Judicial Council, and heads or office-bearers of constitutional bodies.
The first is for one-fourth of the total number of members of the House of Representatives to table an impeachment motion.
The second is to initiate an investigation through the Impeachment Recommendation Committee. Under this route, at least three members of the House must submit a notice seeking impeachment. The committee then investigates the matter, and further action is taken based on its findings.
Article 101(2) of the Constitution sets out the procedure for impeaching the chief justice, Supreme Court justices, members of the Judicial Council, and heads or office-bearers of constitutional bodies.
Under the provision, one-fourth of the total number of members of the House of Representatives can table an impeachment motion against any of these officials.
Once impeachment proceedings are initiated in the House, the official concerned cannot perform their duties until the proceedings are concluded.
This is the first route. If the House formally initiates impeachment proceedings through this process, the person concerned is barred from carrying out their official duties.
However, the Constitution does not clearly specify whether an official can continue performing their duties when the second route is followed — that is, when at least three lawmakers submit a notice seeking impeachment and the Impeachment Recommendation Committee begins an investigation.
Two camps among RSP lawmakers
RSP lawmakers are divided over which of the two constitutional routes the party should follow. Their discussions broadly reflect two positions — a tougher approach and a more cautious one.
Those favouring a hard line say at least one-fourth of the lawmakers should immediately move an impeachment motion against the justices facing questions.
“An impeachment motion itself should be tabled. If we take a softer approach by opting for an investigation or other measures, the issue could gradually disappear,” said an RSP lawmaker who supports the hard line. “If we go soft when the issue has come to the fore, our effort to restructure the entire judicial sector could lose direction.”
However, there is also considerable support within the party for avoiding haste.
RSP lawmaker Madhukumar Chaulagain says the party should examine all the evidence before taking an appropriate step.
“In the past, impeachment was used to serve political interests. That is not what we are doing now,” he said.
According to him, there is a view within the party that any impeachment process initiated this time should be pursued in a way that leads to a clear conclusion.
“Before moving impeachment, we should examine and assess all the evidence and form a committee [the Impeachment Recommendation Committee]. That is the position we support,” he said.
Another RSP lawmaker, Sulav Kharel, also favours a cautious approach.
“I am in favour of taking the softer route,” he told Onlinekhabar. “That means three lawmakers submit a complaint, followed by an investigation and study. Only if serious violations of the code of conduct are established should the report be presented to the House and put to a vote.”
Regardless of which route is taken, an impeachment motion must secure a two-thirds majority in the House of Representatives to be passed.
Article 101(2) of the Constitution states that one-fourth of the total number of members of the House of Representatives can table an impeachment motion against the chief justice, Supreme Court justices, members of the Judicial Council, or heads and office-bearers of constitutional bodies.
It further states that the person concerned will be removed from office if the motion is passed by at least a two-thirds majority of the total number of members of the House.
Grounds for impeachment
The Impeachment Recommendation Committee is constitutionally responsible for examining whether the grounds for impeachment have been met. Article 101(2) of the Constitution identifies four grounds on which impeachment can be pursued, including serious violation of the Constitution or the law, incompetence or misconduct, failure to perform official duties honestly, and serious violation of the code of conduct.
Part 11 of the Constitution sets out the responsibilities and powers of the chief justice and Supreme Court justices under the judiciary.
Article 133, under Part 11, defines the jurisdiction of the Supreme Court. The court has extraordinary jurisdiction and can issue orders including habeas corpus, mandamus, certiorari, prohibition and quo warranto, as well as other appropriate orders.
The chief justice has the primary responsibility of making the administration of justice effective and inspecting and supervising the Supreme Court, subordinate courts and other judicial bodies.
The chief justice is also responsible for leading and managing the administrative and judicial functions of the court. This includes forming constitutional, full and joint benches for hearings and assigning cases to justices.
Several laws also govern the duties, responsibilities and powers of the Chief Justice and Supreme Court justices.
The Supreme Court Act, 2016, sets out the court’s jurisdiction, the formation of single, joint, full and extended full benches, its authority to punish contempt of court, and administrative arrangements.
The chief justice is also a member of the Constitutional Council, which is chaired by the prime minister and recommends appointments to various constitutional bodies.
The chief justice chairs the Judicial Council, which leads recommendations concerning the appointment, transfer, discipline and dismissal of justices.
The chief justice also chairs the Judicial Service Commission, which oversees the appointment and promotion of government attorneys and employees in the judicial service.
The Judicial Council Act, 2016, defines the functions, duties and powers of the council, as well as the legal procedures governing the appointment, transfer, discipline and dismissal of justices.
The Judicial Service Commission Act, 2016, deals with the career development and administration of government attorneys and judicial service employees.
The Remuneration, Conditions of Service and Facilities of the Justices Act, 2017, sets out the salaries, housing, vehicles, pensions and other benefits of the Chief Justice and other Justices.
The National Civil Procedure Code, 2017, and the National Criminal Procedure Code, 2017, govern routine judicial procedures, including the filing of cases, service of notices, examination of evidence and enforcement of judgments.
The Supreme Court Regulations also set out procedures for the court’s daily operations, registration and hearings of writ petitions, management of cause lists and other administrative matters.
Failure to properly exercise or misuse powers established by the Constitution, laws and regulations may constitute a breach of ethical and professional duties and could provide grounds for impeachment.
Justices are expected to administer justice independently and impartially, without being influenced by political, financial or personal interests. They must also maintain conduct befitting their office and preserve judicial confidentiality.
The Justices’ Code of Conduct, 2017, requires justices to perform their duties independently and impartially, free from external influence by the executive, legislature, political parties or any other entity.
Rule 4 of the code states: “A justice shall perform judicial duties without favouritism, partiality, prejudice or animosity of any kind.”
The impeachment debate has emerged following reports of relationships and exchanges of messages between Supreme Court justices and intermediary Inam Sapkota, which have raised questions about possible violations of the code of conduct.
RSP lawmaker Chaulagain says the party is examining whether the justices concerned acted in accordance with established rules and procedures, focusing on the issues that have come to light.
“Public confidence in the judiciary has almost reached zero,” he said. “Some tough steps have to be taken to restore public trust in the judiciary.”
One justice or two?
As with the question of which impeachment route to follow, RSP lawmakers have yet to reach a decision on whether to pursue impeachment against one Supreme Court justice or two.
Questions have been raised about the relationship and communications between Justice Hariprasad Phuyal and Inam Sapkota. Some have also linked Chief Justice Dr Manoj Kumar Sharma to the controversy.
Sapkota’s mobile phone reportedly contained bank account details sent for depositing money, with the chief justice’s name mentioned. There were also reported WhatsApp exchanges.
Communications and contact between Justice Phuyal and Sapkota have also come to light in connection with a case pending before the Supreme Court.
Justice Phuyal has acknowledged meeting Sapkota while speaking to journalists, but has also provided his account of the circumstances.
He claimed that he was not alone in meeting Sapkota and that several other Supreme Court justices had also met him. According to Phuyal, after Sapkota attempted to influence a case, the justices themselves filed a complaint against him, leading to his arrest.
Chief Justice Manoj Kumar Sharma has already held a full court meeting of the Supreme Court to discuss the issue. A majority of the justices reportedly suggested that the Supreme Court conduct an internal investigation and establish the facts surrounding the questions raised.
Against this backdrop, support has grown within the RSP for pursuing impeachment against Justice Phuyal.
“There is a view that the questions coming from within the judiciary may extend further down the line and lead to impeachment. Politically speaking, I do not agree that the discussion has reached that point,” an RSP office-bearer told Onlinekhabar. “For now, the idea is to open the impeachment issue through this case. If further investigation brings other people into the picture, there is no reason to protect them.”
The office-bearer also argued that the credibility of the claims made against Chief Justice Sharma was relatively weak.
“The chief justice is mentioned in a reference from a year ago, but it is not clear who that person was. The chief justice has not even met Sapkota. So there is no strong evidence against him,” the office-bearer said. “If evidence emerges in the future, there will be no reason to protect him either.”
