July 7, Kathmandu. That was about 19 months ago. Speaker Agni Prasad Sapkota was formally informed that a meeting of the Constitutional Council would be held at 9 am on December 12, 2077 BS. The information was circulated against the backdrop of the then Prime Minister KP Sharma Oli rushing to appoint officials in various constitutional bodies.
Speaker Agni Prasad Sapkota did not attend the meeting due to ‘busy schedule’. At that time, the conflict had already started within the Communist Party of Nepal (CPN) formed by the unification of the UML and the Maoist center. Leaders including Pushpa Kamal Dahal Prachanda and Madhav Kumar Nepal were trying to stop the recommendation of appointment. Speaker Sapkota assisted in that.
The meeting was adjourned due to lack of quorum as even the Leader of the Main Opposition Sher Bahadur Deuba did not participate in the meeting. However, Prime Minister Oli’s wish to convene a meeting of the Constitutional Council and appoint officials to the constitutional body was not immediately fulfilled.
For him, the then Constitutional Council Act became an obstacle. Because according to the Constitutional Council Act, the quorum would be reached only if 4 out of 6 members participated. As the post of Deputy Speaker was vacant, the meeting would be interrupted even if either Sapkota or Deuba was absent.
In the face of this dire situation, the then Prime Minister Oli issued an ordinance on the Constitutional Council, adding that at that time, a meeting could be held on the basis of a quorum of three. A meeting of the Constitutional Council was convened on the same day (30 December 2077) at 5:30 pm.
A three-member meeting, including Prime Minister Oli, Chief Justice Cholendra Shamsher Jabra and National Assembly Speaker Ganesh Prasad Timilsina, recommended appointments to various bodies. According to Speaker Sapkota, he was not invited to the meeting convened in the afternoon. This appointment became very controversial and criticized.
Regular hearings in the Supreme Court on cases filed 19 months ago over the same appointment will begin on Wednesday. Chief Justice Cholendra Shamsher Jabra, who was accused of taking part in various appointments, did not allow the case to be heard on various pretexts till he took office. Following his suspension, the case is being heard.
The petitions, which will begin hearing in the Constitutional Court of the Supreme Court on Wednesday, seem to raise four questions of constitutional importance. According to advocate Omprakash Aryal, issues such as the constitutionality of the ordinance, its justification and parliamentary hearing have been raised.
He says, “Three important constitutional questions have been raised in this regard. The issue raised by the speaker is a legal question related to facts. Speaker Agni Prasad Sapkota has claimed that the meeting convened without informing him and the decision taken will be illegal.
The first question is the ordinance to narrow the constitution
Article 1 of the constitution has a provision that ‘laws that are in conflict with the constitution will be invalid to the extent of conflict’. The Constitution envisages a Constitutional Council consisting of the Prime Minister, the Chief Justice, the Speaker, the Chairperson of the National Assembly, the Leader of the Main Opposition and the Deputy Speaker. But then the government issued the ordinance three times and narrowed down its concept.
According to the provisions of the ordinance, if any three of the six office bearers of the Constitutional Council were present and made a decision, it would be recognized. The ordinance provided for the recognition of the decision of two persons. The main demand raised in the writ petition is that the ordinance cannot be issued in a manner that violates the constitutional provision and the appointments made on the basis of unconstitutional ordinance are revoked from the beginning.
Second question, meeting without notice
Speaker Agni Prasad Sapkota has been claiming from the very beginning that his rights as a member of the Constitutional Council have been violated. A writ petition filed by him seeking revocation of the appointment on the same grounds is pending in the Supreme Court. The right of the office bearers of the Constitutional Council to know the date, place and agenda of the meeting 24 hours before the commencement of the meeting has been protected in the Act.
Article 6 of the Constitutional Council (Functions, Duties, Rights and Procedures) Act, 2066 states, “The Secretary shall send to the members at least 48 hours prior to the date of the meeting, including the date, time and place of the meeting of the Council and the agenda.” As the ordinance was not amended, this provision was still in force. And, the Constitutional Council should have followed that.
According to Speaker Sapkota, the meeting convened without his knowledge had made various appointments. He said that such precedent of 2067 BS should be taken as the basis. Leader of the Opposition Pushpa Kamal Dahal could not attend the meeting of the Constitutional Council convened by the then Prime Minister Madhav Kumar Nepal in 2067 BS. After raising this issue, the Supreme Court had rejected the recommendation for appointment.
The third question, is it a parliamentary hearing?
Nepal’s constitution stipulates that constitutional office-bearers must face a parliamentary hearing. Article 292 of the Constitution states, “Parliamentary hearings shall be held in accordance with the federal law before the appointment of the Chief Justice, judges of the Supreme Court, members of the Judicial Council, heads or office bearers of constitutional bodies and ambassadors to be appointed on the recommendation of the Constitutional Council.”
However, the proposed office bearers, who were recommended by the Constitutional Council on 30 December 2077 and 26 April 2078, did not face a parliamentary hearing and were appointed. He was appointed by the President’s Office on the basis of correspondence from the Secretariat of the Constitutional Council. However, the Federal Parliament Secretariat is the official body that corresponds to the office of the President regarding the appointment of office bearers of the constitutional body.
Rule 26 of the Joint Meeting and Joint Committee (Operation) Rules 2075 of the Federal Parliament stipulates that the committee should conclude the parliamentary hearing within 45 days and prepare the opinion of the committee for the proposed post and send it to the concerned body. In the writ petition filed by advocate Samrit Kharel, there is a demand to repeal the provisions of the rules that are in conflict with the constitution and to revoke the appointment.
The President’s Office has appointed the constitutional office bearers on the condition that if the committee fails to provide its decision in time, there will be no impediment to the appointment to the post sent for hearing. This provision violates the provision of parliamentary hearing in the constitution and demands for its repeal. Which the Supreme Court will hear simultaneously with other petitions.
Fourth question, justification of the ordinance
Fourth, the justification of the ordinance seems to have been raised in the writ petitions. In April 2078, the government had tried to expedite the process of appointment of constitutional office bearers through an ordinance. The then government withdrew the ordinance after widespread criticism. But then the Constitutional Council met and appointed by issuing successive ordinances.
It seems that the government has issued ordinances of the same nature three times in a period of 13 months. Advocate Aryal said that the tendency to issue ordinances at the end of the parliamentary session, make recommendations and appointments on the same basis and immediately repeal the ordinance would attack the constitutional supremacy of the country.
“It is an arrangement to issue an ordinance when the government needs to do something. However, it has been seen that the ordinance has been repeatedly misused to govern itself ‘, said advocate Aryal. However, we have challenged in court that such decisions will not be revoked as there are wrong decisions on the basis of the ordinance and such problem will be repeated in the coming days.
The Supreme Court’s interpretations of the ordinance are rare in Nepal. Last year, on the issue of the Citizenship Ordinance, the Constitutional Bench of the Supreme Court, through an interim order, drew the attention of the government not to make the ordinance a ‘weapon of political gain’. Considering the issuance of the ordinance as inappropriate by interfering in the jurisdiction and jurisdiction of the legislature, the Supreme Court had pointed out the urgency. Advocate Aryal says that a similar question has been raised in the appointment of constitutional office bearers.
According to the concept of continuity of government, this government should defend the actions and decisions taken by the previous government. On the issue of constitutional appointment, Prime Minister Sher Bahadur Deuba has only defended the decision of the previous Prime Minister. The same is seen in the written reply of the Chief Secretary, the Prime Minister and the Office of the Council of Ministers.
Prime Minister Deuba has replied in writing that the writ petition filed seeking annulment of the Constitutional Council Ordinance is unjustified. Chief Secretary Shankar Das Bairagi has claimed that the ordinance was issued after completing the process. The President’s Office has also claimed that those officials have been appointed as per the procedure. But it is not clear on whose recommendation and decision the appointment was made.
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