Speaker moves court bringing key institutions of state in confrontationAgni Sapkota files petition against the constitutional body appointments made by the Constitutional Council where prime minister is the chair and chief justice a member.
In what appears to be an unprecedented incident in Nepal’s democratic practices, the head of the legislature has approached the Supreme Court to file a case against the heads of all key state agencies—the executive, the judiciary and the presidency.
House Speaker Agni Sapkota on Friday filed a writ petition at the Supreme Court against Wednesday's appointments of office bearers to various constitutional bodies inviting a direct confrontation with the two other state agencies. The Speaker moved the court two days after President Bidya Devi appointed 32 office-bearers to 11 constitutional bodies.
The 32 office bearers were recommended by the Constitutional Council on December 15.
“A writ challenging the appointments has been registered,” Kishor Poudel, a communication expert at the Supreme Court, told the Post. “Speaker Sapkota himself was present to file the petition.”
The hearing on the petition will commence on Sunday.
Wednesday’s move has invited widespread criticism, as many say the appointments were unconstitutional because the Constitutional Council, headed by Prime Minister KP Sharma Oli, had made those recommendations after amending the Constitutional Council Act through an ordinance and the nominees had not gone through a parliamentary hearing, a process made mandatory by the constitution.
Along with the 32 appointees, the Office of the President, Prime Minister Oli as the chair of the Constitutional Council, Chief Justice Cholendra Shumsher Rana and National Assembly Chairman Ganesh Timilsina as the council members, the secretary at the council secretariat, and Chief Secretary Shankar Das Bairagi have been made defendants.
The constitution stipulates a six-member Constitutional Council headed by prime minister, with House Speaker, deputy Speaker and the leader of the main opposition among the members.
There was no deputy Speaker elected, and the Oli government had amended the provisions in such a way that the presence of the Speaker and leader of the opposition was not necessary.
The Speaker had already expressed his dissatisfaction at the December 15 recommendations saying that he was not informed about the meeting as per the mandated rule—that members must be informed about the meeting 48 hours beforehand.
Earlier on Sunday, the Speaker had sent back documents related to the Constitutional Council’s recommendations to its secretariat.
Experts say Sapkota’s moves are questionable but the situation the country is facing is invited by Oli who has been making unconstitutional moves one after another.
Over the years, since assuming office in February 2018, Oli has taken a slew of decisions aimed at centralising power. And in doing so, he has not spared any institution. His actions have brought disgrace upon the Office of the President, with many saying that the head of executive had reduced the head of state to the clerical status, where the high office’s job has been just to put a stamp on the government’s decisions.
But Oli's House dissolution decision created more mess, as with a stroke of the pen, he dragged other key institutions—the judiciary and the legislature—into controversy, giving rise to dirty partisan politics.
“The way the situation is unfolding in Nepal is an ugly example of partisan politics,” Krishna Pokhrel, a professor of political science at Tribhuvan University, told the Post. “Oli started it by dissolving Parliament and others seem to be in a competition to further ruin the system.”
By now it has become apparent which key person stands where.
National Assembly chair Timilsina has made his position clear that he is with Oli, just as Speaker Sapkota has—that he will toe Pushpa Kamal Dahal’s line.
Sapkota was picked for the Speaker’s post by Dahal after a long-drawn tug-of-war in January last year over the appointment.
Rana as chief justice is wearing multiple hats—he leads the Supreme Court and is a member of the Constitutional Council. The council had made recommendations in his presence on December 15. Rana was the one who administered the oath to the appointees on Wednesday.
Constitutional experts say it is unfortunate for the country to see an open confrontation among the key state agencies which are supposed to ensure the checks and balances.
Bipin Adhikari, former dean at the Kathmandu University School of Law, said the extraordinary jurisdiction of the judiciary basically is for the ordinary people, not for the ones who lead the state agencies.
According to him, if state agencies start challenging each other in the court of law, the balance of power gets distrubed.
The principle of separation of powers divides the tasks of the state into three branches: the legislature, the executive and the judiciary.
The tasks are assigned to different institutions in such a way that each of them can put a check on others. As a result, no one institution can become so powerful in a democracy as to destroy this system.
It was therefore Oli’s December 15 ordinance to amend the Constitutional Council Act that attracted widespread criticism, because he had disturbed the power balance envisioned by the constitution.
According to Adhikari, the ongoing friction between the different state agencies is a clumsy example of partisan politics, which does not bode well for democracy.
“The Dahal-Nepal faction is using the Speaker as a tool to put pressure on the government,” said Adhikari. “Sapkota’s role as Speaker has been dubious. At times, he absented himself from the Constitutional Council meetings, and other times, he delayed some bills in Parliament.”
Oli has argued that he was forced to introduce the ordinance to amend the Constitutional Council Act as members, including Speaker, were refusing to attend the meetings, while constitutional positions remained vacant.
The amendment to the Act meant the meeting could convene if the majority of members—three—are present and take a decision through the majority.
Earlier provisions also called for the presence of majority members for the meeting to convene, but without the Speaker and the leader of the opposition, it was almost impossible for holding the meetings. Earlier provisions said the decision must be taken through consensus and if that did not happen, the next meeting could decide on the basis of majority.
But by changing the provisions, Oli made it easier for the council to take decisions, as a meeting could take place without the Speaker and leader of the main opposition.
As Dahal had already upped his ante against Oli, Sapkota was reluctant to attend the meetings, thereby creating a lack of quorum in the council.
According to Adhikari, while the decision to issue the ordinance to revise the Constitutional Council Act was against the spirit of the constitution, the Speaker’s refusal to attend the meetings [before the ordinance] was also wrong.
“It was incumbent upon Sapkota as a key member of the Constitutional Council to participate in the meetings and conduct the required vetting of the nominees,” said Adhikari. “The way politics of the country is moving ahead shows there are many more events on the cards that could harm democracy.”
After registering the petition at the Supreme Court on Friday, Sapkota at a press conference said that he had decided to challenge the appointments to “safeguard the constitution”.
“The act of administering oaths to the chairs and members of constitutional commissions without the mandatory parliamentary hearing is a blatant attack on the constitution,” said Sapkota. “At this adverse situation, I urge intellectuals, mediapersons, civil society and members of the public to unite against such moves.”
Balaram KC, a former justice at the Supreme Court, said Oli’s highhandedness, anarchism and arbitrariness have thrown the country into a big mess.
“It would have been better for this situation not to come, but today’s petition by Sapkota should also not be taken otherwise, as he has used his right to challenge the government,” KC told the Post. “This happens in other countries including the United States of America as well.”
Experts say Oli, through a series of actions, disturbed the balance of power and hence the country is facing a situation where major state agencies are in a legal battle. And this confrontation between the state agencies is not good for democracy and the constitution, according to them.
“Now the country is facing a situation where the key state agencies seem to be in a confrontational mode,” said Adhikari, the law professor. “This is going to cost high for our hard-earned democracy and constitution.”