Country’s three key state organs are in disarrayThe executive is hobbling, legislature is facing an impasse, and the judiciary is caught in tangles.
On Monday, it was Prime Minister Sher Bahadur Deuba’s 60th day in office. He is still leading the government with just four ministers and a state minister. Deuba is leading as many as 17 ministries—a situation observers call unusual, which is largely affecting governance and service delivery. Deuba’s Cabinet expansion plan has been constrained by his coalition partners, especially the CPN (Unified Socialist) and the Janata Samajbadi Party.
Amid this, the budget for the fiscal year has failed to get through Parliament. Finance Minister Janardan Sharma presented a replacement bill for the budget ordinance brought by the erstwhile KP Sharma Oli government in the House on September 10, two days after the new session began. The main opposition CPN-UML, however, did not let the House function even for a day. The budget ordinance was registered in Parliament on July 18, and the deadline for its passage was Wednesday. But on Tuesday, Speaker Agni Sapkota adjourned the meeting following UML’s obstructions and scheduled the next meeting for September 20.
With the budget stuck in Parliament, the country is facing a government shutdown situation, with all spendings halted. Given the UML’s rigid position, it does not look like it will let the House function on September 20 as well.
The House has remained by and large dysfunctional.
It’s not just the two key organs of the state that are in disarray. The third branch also has a fair share of problems of its own. The Supreme Court is grappling with some unprecedented issues, with Chief Justice Cholendra Shumsher Rana in the dock.
After questions were raised if the chief justice can preside over the Constitutional Bench for hearing cases in which there could be a conflict of interest involving himself, Rana on August 27 decided to recuse himself from hearing related to constitutional appointments. But on September 2, a single bench of Justice Hari Phuyal observed that the issue of whether the Constitutional Bench can sit without the chief justice needs to be finalised before any hearing by the bench. The hearing on the constitutional appointments is in limbo.
Observers say Nepal is currently facing an unprecedented situation, with all key state organs in a mess. The executive is non-functional, the House has been taken hostage by political parties and the Supreme Court, the ultimate arbiter of the constitution, is caught in constitutional tangles, they say.
“The judiciary has been unnecessarily scandalised,” said Balaram KC, a former Supreme Court justice. “As it is the inherent right of the chief justice to recuse himself from any case as per the principle of natural justice, no one can question the decision.”
KC has also filed a petition at the Supreme Court demanding he be allowed to intervene in the petition filed by Advocate Ganesh Regmi, saying Justice Phuyal’s observation on Regmi’s demand while trying to deal with a dispute between two parties has affected the “third party”. According to KC, Justice Phuyal’s observation that whether public debate should be allowed or not on sub judice issues needs to be finalised, affects people’s right to freedom of speech.
Phuyal’s ruling on September 2 came in response to the petition filed by Regmi, an advocate. Regmi in his petition said that constitutional provisions must be followed by Rana as Article 137(1) of the constitution clearly states that the chief justice must be part of the Constitutional Bench. Regmi also raised the issue of public debates, including statements by former chief justices after the first House dissolution by then prime minister KP Sharma Oli, and sought a court order to end such public discourses on cases that are sub judice.
KC, the former Supreme Court justice, in his petition has said advocate Regmi’s demand aims to curb freedom of expression and demanded that the court allow him to be an intervenor as a third party so that he could put forth his arguments.
Even though the chief justice took a decision on his own volition to recuse himself from hearings on constitutional appointments, his absence, some say, from the bench violates the constitutional provision.
Article 137 (1) of the constitution says the Constitutional Bench shall consist of the chief justice and other four judges designated by him on the recommendation of the Judicial Council.
In order to discuss ways to find a solution to the ongoing stalemate, Chief Justice Rana had called a meeting of the Bar-Bench Coordination Committee on Monday.
Majority of the 10 committee members pressed the Chief Justice to continue with the Constitutional Bench and finalise the petitions on constitutional appointments at the earliest.
One of the members said the ruling by the single bench aiming to block the hearing of the Constitutional Bench was a strange development in the judiciary and that must be corrected through the Constitutional Bench.
“The chief justice seems to be convinced and he has said he would ensure continuation of the hearing of the constitutional appointments,” said a member of the Bar-Bench Coordination Committee asking not to be named. “How can a single bench block the hearing of another bench as the core concept of the judiciary is to hear cases and deliver justice?”
Whether the chief justice should preside over the Constitutional Bench to hear cases related to constitutional appointments has its roots in an ordinance then prime minister Oli had introduced on December 15.
The ordinance eased the provisions of calling a meeting of the Constitutional Council and making recommendations for various constitutional bodies.
The chief justice is a member of the Constitutional Council. As many as 52 appointments were made to various constitutional bodies as per the ordinance. The appointments, however, have been challenged in the Supreme Court, and the Constitutional Bench needs to take a decision.
Since the appointments were made by the Constitutional Council, where the chief justice is a member, his presence in the Constitutional Bench to hear the cases constitutes a conflict of interest, some say.
A petition demanding an interim order by advocate Dinesh Tripathi, to vacate Justice Phuyal’s interim order, however, was quashed by the Supreme Court. Tripathi is one of the lawyers who have challenged the constitutional appointments.
Advocate Om Prakash Aryal, who has also challenged the appointments, on Monday registered a supplementary petition demanding that the Constitutional Bench continue hearing the cases by quashing Justice Phuyal’s order.
The issue of the Constitutional Bench composition could end if the interim order issued by Justice Phuyal is settled by the Constitutional Bench itself, say experts.
But since such controversies could arise in the future as well, there must be a clear provision in the constitution, according to them.
“Constitutional provisions should be perceived not just in words but also in their spirit and they should be interpreted also by taking the legislative intent into consideration,” said KC. “Constitutional provisions are not like the penal code.”
The constitution envisions the Constitutional Council chaired by the prime minister with five members—the chief justice, Speaker, National Assembly chair, deputy Speaker and the leader of the main opposition. Observers say the composition was designed so as to ensure checks and balances. A meeting of the Constitutional Council is not possible until all the members are present. But Oli introduced the ordinance changing the provisions, as per which a meeting can be held when a majority of members are present.
Since there was no deputy Speaker, the Constitutional Council held its meetings in the presence of the prime minister, chief justice and National Assembly chair, as per the amended provisions, and made recommendations for various constitutional bodies.
Political commentators say the fault in the design of the constitution and politicisation in the judiciary have led the country to the current mess.
“It’s not a functional fault of the system. The ongoing mess has its genesis in the faulty design of the constitution,” said CK Lal, a political analyst who is also a columnist for the Post. “In Nepal, politics has slipped out of political actors’ hands. Politicians are doing politics from the judiciary.”