Chief justice in dock for attending council meetExperts say Rana, who has refused to hear a petition against ordinance on Constitutional Council Act, committed judicial misconduct.
Chief Justice Cholendra Shumsher Rana’s participation in the meeting of the Constitutional Council has raised some serious questions, with many calling it a judicial misconduct and a fraud on the legal system.
A meeting of the Council, called by its chair Prime Minister KP Sharma Oli, recommended 18 names for various posts in different constitutional bodies on Sunday.
The meeting, skipped by the leader of the opposition and House Speaker, was attended by Chief Justice Rana as well as National Assembly chair Ganesh Timilsina.
Experts say Rana should have avoided the Council meeting because a petition against the recommendations made on December 15 is pending at the Constitutional Bench, which he heads. The petition was filed on December 16.
“This is the height of judicial misconduct and it is an out and out fraud on the legal system,” said senior advocate Dinesh Tripathi, who specialises on constitutional law.
The government on Tuesday re-issued an ordinance on the Constitutional Council Act (Functions, Duties and Procedures) 2010, seeking to amend the provisions related to calling of the Council meeting. The same ordinance was issued earlier on December 15, and accordingly, as many as 38 names were recommended for various posts, including the chief commissioner of the Commission for Investigation of Abuse of Authority
But that was challenged in the Supreme Court. The petition was moved to the Constitutional Bench for a hearing.
However, though the issue was scheduled for hearing over a dozen times, Rana did not take initiative to conduct a hearing.
Of the 38 people recommended, 32 were appointed on February 3. They did not go through the parliamentary hearing process, as Oli on December 20 had dissolved the House of Representatives.
Oli had amended the Constitutional Council Act so as to make it easier for holding the meetings of the Council. As per the amendment, a Council meeting can be held if the majority of members are present. Before the amendment, at least five members and the chairperson’s presence was a must to hold a meeting. The constitution has envisioned six-members in the prime minister-led Council.
Currently, there are only five members, as there is no deputy Speaker in the House.
As per the constitutional provisions, chief justice, House Speaker, leader of the opposition, National Assembly chair and deputy Speaker are the members of the Council. Oli as prime minister chairs the Council.
Experts say since the earlier recommendations were challenged in the court, Rana as the head of the judiciary should have avoided the Council meeting unless he redressed the earlier issue. According to them, Rana’s reluctance to conduct any hearing and participate in a Council meeting to recommend more names for the constitutional commissions based on the same ordinance amounts to a major conflict of interest and an attack on the judicial system.
“The way Rana is behaving shows that as though he heads the legal department of the Oli government and not the judiciary. He has failed to maintain the integrity and independence of the judiciary,” Raju Prasad Chapagain, chair of the Constitutional Lawyers’ Forum, told the Post. “His participation in Sunday’s meeting clearly demonstrates that he is deliberately pushing back the petition against the ordinance and appointments.”
Under Oli, many have been saying the principle of separation of powers has come under attack, as the lines between the executive, the judiciary and the legislature have been blurred.
Some allegations also have surfaced if Prime Minister Oli and Chief Justice Rana are working in collusion.
After overturning the House dissolution decision on February 23, which was seen as a major setback for Oli, the Supreme Court within two weeks, on March 7, in a dramatic verdict had made Oli emerge as a powerful prime minister, as it invalidated the Nepal Communist Party (NCP) and revived the CPN-UML and the Communist Party of Nepal (Maoist Centre).
The March 7 verdict, in effect, had caused a split in the alliance formed by Madhav Kumar Nepal and Pushpa Kamal Dahal. Nepal is currently struggling within the UML against Oli, and Dahal is leading the Maoist Centre, which after the court verdict was reduced to the third force in the House.
Sunday’s Council meeting recommended 18 names for various constitutional bodies, said Udaya Timilsina, a personal aide to National Assembly chair Timilsina.
He, however, didn’t provide the list of the appointees.
According to sources, former secretary Madhav Regmi has been recommended as the chair of the Public Service Commission. Similarly, Dilip Regmi, former chief of the National Investigation Department, has been recommended as a member of the Commission for Investigation of Abuse of Authority. Another person recommended as a member of the anti-corruption agency is Hari Poudel, according to sources.
Likewise, former secretary Bir Bahadur Rai has been recommended as a commissioner of the Election Commission.
Nepal’s constitution envisioned a Constitutional Council with a view to appointing individuals to the constitutional bodies on the basis of merit and qualification so that such entities can keep a close eye on the government and hold it to account.
But for years, the constitutional councils have become a place where leaders place people of their choice, with some vested interests.
In a recent case, the appointments to the National Human Rights Commission have come into question, with the United Nations and international human rights organisations too expressing their reservations. They have said the way the Oli government has appointed individuals in the national rights watchdog jeopardises the constitutional body’s independence.
Chief Justice Rana is complicit in all these appointments, experts say.
According to Tripathi, Rana’s complicity has become apparent in Oli’s unconstitutional and illegal moves.
Sundays’ Council meeting to recommend names for the constitutional bodies was held a day ahead of Oli’s trust vote in Parliament.
“It has become evident now that the longer Rana remains the chief justice, the more deterioration of the judicial independence the country will see,” said Tripathi. “It’s an irony that the person who is supposed to protect the constitution and who is the ultimate arbiter of the constitution has emerged as a threat to the very constitution.”
Anil Giri contributed reporting.