Due to the age limit of 65 years, Chief Justice Cholendrashamsher has compulsorily retired since Tuesday, 13th December 2022. With the retirement, the way has been opened to investigate the charges of corruption and money laundering against the outgoing Chief Justice Jabara.
According to the records of the Judicial Council, Jabra, who was born on December 13, 1957, turned 65 years old on Tuesday. Article 131 (b) of the Constitution of Nepal states that the age limit of the Chief Justice or Justices of the Supreme Court is 65 years. While the impeachment against him is pending in the House of Representatives, he retired due to age limitation.
Cholendrashamsher Jabara was appointed as a justice of the Supreme Court on May 27, 2014, and was appointed as the Chief Justice of Nepal on January 02, 2019. According to Article 129 (3) of the Constitution of Nepal, there is a constitutional provision that a person who has worked as a justice of the Supreme Court for at least three years can be appointed to the post of Chief Justice, while according to Article 129 (4) the Chief Justice can hold the position for a maximum of six years.
At present, under 131 (b), the position of Chief Justice or Supreme Court judge is vacant if he reaches the age of sixty-five years, Cholendrashamsher Jabara has been allowed to do so. If the pending impeachment was passed in the House of Representatives, there was a possibility that the position would be vacated if the motion for impeachment against him was passed in accordance with Article 101 in accordance with Article 131 (c).
Even though Cholendrashamsher Jabara has been under suspension until today, since she has been the Chief Justice, there is no plan to investigate the matter by the Authority or the Money Laundering Investigation Department.
In the event that it has been cleared, according to Article 101(8) of the Constitution, the way has been opened to investigate any crime against him in accordance with federal law.
Article 101(8) of the Constitution of Nepal states that;
“Nothing shall bar the taking of action under the federal law in relation to the offense, if any, committed while in office by the President or Vice-President, the Chief Justice of Nepal or a Justice of the Supreme Court of Nepal, the member of the Judicial Council, the chief or official of a Constitutional Body who is relieved of office upon the adoption of a motion of impeachment under this Article.”
Similarly, in Article 239 of the Constitution, there are provisions regarding the work, duties, and rights of the Commission for Investigation of Abuse of Authority. It has been arranged that officials who cannot be investigated for corruption charges due to being in a particular position can be investigated by the authority after their retirement. In this way, even in the case of corruption, the Authority Investigation Commission can investigate against him.
The then Chief Justice Cholendra Shamsher Jabara has been accused of corruption and amassing wealth from it. The authority can immediately start an investigation and call him for a statement.
There is a similar provision in the law to regulate the work of the Abuse of Authority Investigation Commission. Section 29(2) of the Commission for Investigation of Abuse of Authority Act 2048 states,
“(2) Notwithstanding anything contained in this Act, in case any person holding a public post is found to have abused powers when he/she was holding the public post and it was not possible to initiate action pursuant to this Act immediately, nothing in this Act shall be deemed to have prevented to take action against him/her even after retirement from the post for whatever reasons.’
Advocate Omprakash Aryal says that Cholendrashamsher Jabara has been accused of solicitation in the case pending in the court and acquired illegal wealth through it.
After the resignation, the Authority asked the Attorney General’s Office for an opinion on whether there would be any hindrance in proceeding with the investigation and filing the case. At that time, the Attorney General’s Office had given an opinion that there would be no constitutional or legal impediment to investigating the former office-bearers of the constitutional body for corruption.
In the Corruption Control Act, of 2059, there is a provision for additional punishment for corruption involving officials of constitutional organs. In section 24 of that Act, it is stated that ‘officers of constitutional organs or bodies, officials nominated or appointed by the President, officials of a special category or similar to the government, heads of public institutions, general managers or similar officials, if they commit the offense of corruption, the punishment will be an additional three years imprisonment.’