A day after the Sher Bahadur Deuba government repealed the ordinance on the Constitutional Council Act, an advocate on July 19 filed a supplementary petition at the Supreme Court demanding a “quo warranto”.

Om Prakash Aryal, the advocate who filed the supplementary petition, said his demand for “quo warranto” means those 52 individuals appointed under the now-repealed ordinance must show on what warrant they are holding their offices.

Aryal had earlier on June 13 this year and December 16 last year filed petitions demanding the quashing of those appointments, saying they were made after amending the Constitutional Council Act through an ordinance.

The court, however, has not conducted a single hearing on any of the petitions.

Many say since Chief Justice Cholendra Shumsher Rana was present in the meetings of the Constitutional Council that made nominations for various constitutional bodies, he has refrained from conducting a hearing. The hearing on the petitions needs to be conducted by the Constitutional Bench, which Chief Justice Rana heads.

Amid this, a report prepared by a committee led by Justice Hari Krishna Karki has recommended that the presence of the chief justice in the Constitutional Council needs to be reviewed. The Karki-led committee was formed to study the malpractices and corruption in the judiciary and recommend solutions.

“The nominations made by the Constitutional Council have been dragged into controversy and they have also been challenged in the Supreme Court,” Chandeshwor Shrestha, president of Nepal Bar Association and a member of the Karki-led panel, told the Post.

“However, the hearing hasn’t been conducted yet because the chief justice, who was present in the nomination process, leads the Constitutional Bench. We have, therefore, recommended a review of the provision that makes the chief justice’s presence in the council mandatory.”

The constitution mandates the Constitutional Council to nominate officials for positions in the constitutional bodies to keep checks on the government.

The council is headed by the prime minister with the chief justice, House Speaker, National Assembly chair, deputy Speaker, and the main opposition leader as members.

On December 15 last year, the then KP Sharma Oli government introduced an ordinance to amend the Constitutional Council Act, 2010 to ease convening the Council’s meeting.

Before the amendment, Clause 6 (3) of the Act said that “at least five members must be present besides the prime minister for the Council to convene its meeting”.

The amendment to the provision meant the Council could convene a meeting when the majority of existing members were present.

With no deputy Speaker appointed, Oli held the meeting in the presence of the chief justice and the National Assembly chair.

The ordinance had run into controversy. Despite Oli’s promise to withdraw the ordinance, he did not do so. Instead, after making some appointments, he dissolved the House on December 20.

As many as 38 nominations made on December 15 had immediately met with criticism. Oli’s House dissolution was overturned by the Supreme Court on February 23. But on May 4, the Oli-led Council again made 20 nominations.

Of the total individuals nominated, 52 were automatically appointed to various constitutional bodies after their parliamentary hearing could not be conducted within 45 days.

As per Article 292, parliamentary hearings shall be conducted for appointments to the offices of the chief justice and judges of the Supreme Court, members of the Judicial Council, chiefs and members of constitutional bodies and offices of ambassadors.

But Rule 26 (2) of the Joint Parliamentary Meeting Regulations says there would be no obstruction for the nominated individuals to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the letter from the [Constitutional] Council.

Oli, however, was ousted by the Supreme Court on July 12 after his second House dissolution on May 21.

The Sher Bahadur Deuba government formed on July 13 repealed the ordinance on July 18, but since the appointment issue was already sub judice, experts said it was up to the court to decide.

As Rana, who was part of the nomination process, leads the Constitutional Bench, which is supposed to hear the petitions, questions have arisen about his conflict of interest and impartiality.

“Such a situation could have been avoided if the chief justice was not part of the Constitutional Council,” said Shrestha. “That’s why we have recommended that the provision of the chief justice in the council be amended.”

But the chief justice’s presence in the council is a constitutional provision, and taking him/her out of the council will need an amendment to the constitution. A constitutional amendment, however, is possible only if Parliament votes for it with a two-thirds majority.

Constitutional experts and the political party leaders involved in the constitution drafting process have a divided opinion on the recommendation by the Karki-led panel.

Senior advocate Dinesh Tripathi, who specialises in constitutional law, says the Karki-led committee has made an important recommendation that needs to be internalised by political parties.

“The entire judiciary has come under controversy because of the chief justice’s presence in the controversial decision by the council,” Tripathi told the Post. “The Karki panel’s recommendation should be adopted through an amendment to the constitution.”

Others, however, disagree. They say the chief justice is the only non-political face in the council who can correct if some unjustified nominations are made.

“There is no need to take a position against the chief justice's presence in the council because of a one-off incident,” Tulasi Simkhada, a constitutional lawyer, told the Post. “It would be better to review the provision that makes it mandatory for the chief justice to lead the Constitutional Bench.”

The question of whether the chief justice should lead the Constitutional Bench had arisen earlier in December and May when petitions were filed against Oli’s House dissolutions.

Some argued that the chief justice can let any other senior justice lead the bench if questions are raised about his presence on the bench. Questions were also asked about the composition of the bench, as plaintiffs doubted the conflict of interest of some of the justices. Article 137 (1) says the Constitutional Bench consists of the chief justice and four other justices designated by the chief justice on the recommendation of the Judicial Council.

After the controversy, Chief Justice Rana had changed the composition of the bench by designating four senior most justices.

Those involved in the constitution drafting process say the chief justice as a member of the Constitutional Council is a continuation of the earlier constitutions of 1991 and 2007. This is an international practice as well, according to them.

Giriraj Mani Pokharel, a Standing Committee member of the CPN (Maoist Centre), who was a member of the Constitution Drafting Committee of the Constituent Assembly, said no decision should be taken based on just one incident or actions of one particular chief justice.

“The chief justice is a dignified personality who even administers the oath to the President of the country,” said Pokharel. “I disagree with the idea of discontinuing the chief justice as a member of the council.”

According to Pokharel, the idea behind including the chief justice in the Constitutional Council is that he/she could vet the names forwarded by the prime minister, thereby ensuring checks and balances.

“We should be concerned about whether everyone is performing their expected responsibility, rather than making changes because of an incident or two.”

Experts had told the Post in December that it was Oli who had thrown the principle of checks and balances out the window when he introduced the ordinance to amend the Constitutional Council.

Oli had argued that the continued absence of Deuba, who was the leader of the then opposition party, had created hurdles in holding the meetings of the Constitutional Council, thereby affecting appointments to various constitutional bodies. Since there was also a tussle in the then Nepal Communist Party (NCP), Speaker Agni Sapkota avoided the meetings.

Sapkota was appointed the Speaker in January last year after a long tug-of-war between Oli and Pushpa Kamal Dahal, who was the other chair in the Nepal Communist Party (NCP). Sapkota’s reluctance to attend the council meetings was also seen as part of his long-time comrade Dahal’s fight with Oli.

Sapkota had even sent back the 38 nominations made on December 15 to the Constitutional Council’s Secretariat, saying he was not informed about it.

Now the Karki-led panel recommending that the chief justice should not be a member of the council has raised more questions.

Those involved in the constitution drafting process say the presence of the head of the judiciary in the council enhances its dignity and the objective is nothing but making appointments to the constitutional bodies fair.

“The presence of the chief justice is necessary to ensure all three organs of the state have a presence in the council,” Rewati Raman Bhandari, who was a member of the constitution drafting committee from the CPN-UML, told the Post. “We can find a way out for the mandatory presence of the chief justice in the Constitutional Bench though.”

(Tika R Pradhan contributed reporting.)