Hearings on Constitutional Council ordinance, appointments get deferredLegal experts say the hearing postponement comes at a time when questions are being raised over the alleged influence of the executive over the judiciary.
Petitioners and legal experts have expressed surprise over what they call low priority given by the Supreme Court on petitions filed against the ordinance on the working procedure of the Constitutional Council and the latest recommendation by the council based on the ordinance.
On Friday, the Supreme Court didn’t conduct hearings on the two petitions filed by advocate Om Prakash Aryal and Dinesh Tripathi on December 16 challenging the constitutional validity of the ordinance.
The petitions were put on the eighth and ninth places of the priority list of the constitutional bench, headed by Chief Justice Cholendra Shumsher Rana, and they were not heard citing lack of time.
“The court conducted hearings on all the cases that were just above the priority list than mine,” Aryal told the Post. “It was 1pm when the constitutional bench decided to call it a day, though the office time was supposed to end at 3pm.”
The hearing on Aryal’s petition has been rescheduled for next Friday.
The Supreme Court had not included the petition filed by law student Samrit Kharel contesting the council’s appointment recommendations on various constitutional bodies made on the basis of the ordinance.
The hearing on the petition, which was filed on December 21, had been fixed for Friday.
“My petition was neither included on the daily cause list, nor on the list of postponed cases,” Kharel told the Post. “After we demanded an explanation, the court notified us that three relevant cases would be scheduled together for hearing.”
On December 15, a meeting of the Constitutional Council had recommended 38 names to fill the vacancies in several constitutional bodies, including the Commission for Investigation of Abuse of Authority.
The council’s move has, however, raised a question concerning its constitutional validity, as the meeting was attended by only three members against the quorum requirement of six.
The three members who were present at the council’s meeting were Prime Minister KP Sharma Oli, Chief Justice Cholendra Shumsher Rana and National Assembly Chairman Ganesh Timilsina.
Kharel has challenged the council’s appointment recommendations in various constitutional bodies.
“It is natural to expect some delays in conducting hearings on other cases due to the bigger case related to the dissolution of the House of Representatives,” said Bipin Adhikari, a constitutional lawyer and former dean of the Kathmandu University School of Law.
On December 20, the KP Sharma Oli government had dissolved the House and called for a midterm elections for April and May, sending a political shockwave across the country. Political parties and civil rights groups have termed Oli’s move unconstitutional and the case has now landed in the court.
On December 25, a five-member constitutional bench of the Supreme Court issued a show cause notice in the name of the Office of the President and the government for their decision to dissolve the House. The court has ordered the defendants to submit their explanation by January 3.
“While the issue of House dissolution may be the dominant issue right now, the court should not drag on the case concerning the Constitutional Council. It is also of constitutional importance,” Adhikari said.
Some observers say the Supreme Court has been postponing hearings on the controversial ordinance and the appointment recommendations made by the Constitutional Council based on the ordinance at a time when questions are being raised over the alleged influence of the executive over the judiciary.
They also noted the presence of Chief Justice Rana in the December 15 meeting of the Constitutional Council that took the controversial decision to appoint officials in various constitutional bodies.
Some legal experts have expressed concern if the delay in hearings would lead to automatic appointment of those recommended without parliamentary hearings. After recommending the names, the council on December 18, had sent the names to the Parliamentary Secretariat for hearings. But two days later the Oli government dissolved the lower house of Parliament.
As per Rule 26 (2) of the Joint Parliamentary Meeting Regulation, there would be no obstruction for the recommended people to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the letter from the council.
Adhhikari, the constitutional lawyer, suspects recommendations were made to avoid parliamentary hearings, as provisioned in the constitution.
“This could be considered a constitutional fraud,” he said.
Advocate Tripathi, who filed the petition against the ordinance, argues that provision in the ordinance that allows the council to make decisions without full quorum is against the constitution.
“The constitution has made the provision of a six-member council and the ordinance cannot override the provision,” he told the Post. “Parliamentary hearing is also a crucial part of the constitution and our democratic practice but the recommendations were made to avoid parliamentary hearings. This move is clearly against the constitution.”
Article 292 of the constitution provisions parliamentary hearings of the judges to be appointed by the Judicial Council and those to be appointed to constitutional bodies by the Constitutional Council. With the President dissolving the House on December 20 as per the recommendation of the Cabinet, parliamentary hearings cannot take place now.
A 15-member joint committee representing both Houses of the federal parliament is formed to conduct the hearing as per the Article 292 (2) of the constitution.
But, in a recent interview with the Post, Advocate Ramesh Badal defended the ordinance, arguing that it was introduced to ensure implementation of the constitution as two members of the Constitutional Council failed to attend the meeting “repeatedly” and the council failed to take a decision.
Speaker Agni Prasad Sapkota did not attend the council’s meeting on December 15.
On December 13, the meeting of the council was postponed after the main opposition leader Sher Bahadur Deuba refused to attend it, citing a protest programme of his Nepali Congress party against the police manhandling and detention of its leader Ram Chandra Poudel.
“The ordinance does not bar the leader of the opposition and any other member from participating in the meeting. Therefore, the ordinance is fully constitutional,” said Badal. “If a person refuses to fulfil his or her constitutional duty, such a move is necessary to make the institutions provisioned by the constitution functional. It is very much a constitutional move.”