Category: Quotes

१६ माघ, काठमाडौं । सर्वोच्च अदालतले प्रधानमन्त्री केपी शर्मा ओली, पूर्वसभामुख दमननाथ ढुंगाना, पूर्वप्रधानन्यायाधीशहरू मीनबहादुर रायमाझी, कल्याण श्रेष्ठ, अनुपराज शर्मा र सुशीला कार्कीलाई अदालतको अवहेलनासम्बन्धी मुद्दामा लिखित जवाफसहित आफैं उपस्थित हुन विहीबार आदेश दिएको छ ।

सर्वोच्चले एकै दिन आदेश दिएको भए पनि प्रधानमन्त्री, पूर्वसभामुख र पूर्वप्रधानन्यायाधीशहरू विरुद्ध फरक-फरक रिट दर्ता भएका थिए । रिट मात्रै होइन, उनीहरूलाई अवहेलना गरिएको भनिएको सन्दर्भ पनि फरक- फरक छ ।

तमासा र अवहेलना

प्रधानमन्त्री ओलीले ९ माघमा बबरमहलमा आयोजित कार्यकर्ता भेलामा वरिष्ठ अधिवक्ता कृष्णप्रसाद भण्डारीलाई लक्षित गर्दै ‘एकजना बाजे वकिललाई पनि लिएर गएछन् त्यहाँ तमासा देखाउन‘ भनेका थिए ।

यो भनाइले अदालतको अवहेलना गरेको भन्दै वरिष्ठ अधिवक्ता डा. कुमार शर्मा आचार्य र कञ्चनकृष्ण न्यौपानेले प्रधानमन्त्री ओलीविरुद्ध अवहेलना रिट दर्ता गरेका थिए । त्यही रिटमाथि सुनुवाइ गर्दै सर्वोच्च अदालतले सात दिनभित्र ओलीलाई जवाफसहित उपस्थित हुन आदेश दिएको हो ।

५ पुसमा गरिएको प्रतिनिधिसभा विघटन विरुद्ध सर्वोच्च अदालतमा दर्ता भएका १३ वटा रिटमाथि सुनुवाइ जारी रहँदा प्रधानमन्त्री ओलीले संविधानमा संसद् पुनर्स्थापनाको व्यवस्थै नभएको उल्लेख गर्दै अदालतको बहसलाई तमासा भनेका हुन् ।

‘उहाँविरुद्ध अदालतमा नालेस परिसकेको अवस्थामा जे पर्छ भनेर बस्नुपर्ने हो, प्रतिवाद गर्दै हिँड्ने होइन’ संविधानविद् डा. विपिन अधिकारी भन्छन्, ‘अर्कोतिर प्रधानमन्त्री भनेको शक्तिको प्रतीक पनि हो । त्यसकारण पनि उहाँले कडा आवाजमा बोल्दा अदालत प्रभावित हुन सक्छ ।’

अभिव्यक्ति स्वतन्त्रता र अवहेलना

पूर्वप्रधानन्यायाधीशहरू विरुद्ध अधिवक्ता धनजीत बस्नेत, लोचन भट्टराई र पूर्वसभामुख दमननाथ ढुंगानाविरुद्ध अधिवक्ता राजाराम घिमिरेले रिट दर्ता गएका थिए । सर्वोच्च अदालतले चार पूर्वप्रधानन्यायाधीश र पूर्वसभामुख ढुंगानालाई पनि लिखित जवाफसहित उपस्थित हुन आदेश दिएको हो ।

संविधानका जानकारहरू पूर्वप्रधानन्यायाधीशहरूको अभिव्यक्ति भने कुनै पनि दृष्टिबाट अदालतको अवहेलना नभएको बताउँछन् । अदालतको ‘अ’सम्म उल्लेख नगरिएको विज्ञप्तिलाई लिएर उनीहरूविरुद्ध अवहेलना भयो भन्न नमिल्ने संविधानविदहरू बताउँछन् ।

पूर्वप्रधानन्यायाधीशहरूले स्वतन्त्र नागरिकको हैसियतले आ-आफ्नो धारणा राखेको देखिन्छ, उहाँहरूको भनाइ अदालत प्रति लक्षित पनि छैन’ संविधानविद् डा. अधिकारी भन्छन्, ‘निर्णय प्रक्रियालाई असर पार्ने मनसाय राखेको पनि देखिँदैन, त्यसकारण अवहेलना गर्नुपर्ने कारण र परिस्थति छैन ।

सर्वोच्च अदालतका पूर्वन्यायाधीश गिरिशचन्द्र लाल भने लोकतन्त्रमा त्यस्तो क्रियाकलापले अदालतको काम कारवाहीमा वाधा आएको छ कि छैन भनेर हेर्नुपर्ने बताउँछन् ।

क्षमा मागे सजायँ नहुन सक्ने

न्याय सम्पादनको कार्यमा कसैले अवरोध गरेमा वा आदेश वा फैसलाको अवज्ञा गरेमा अदालतको अवहेलनामा कारबाही चलाउन सकिने कानूनी व्यवस्था छ । सर्वोच्च, उच्च र जिल्ला अदालतले आफ्नो र मातहतको अदालत वा न्यायिक निकायको न्याय सम्पादनको कार्यमा अवरोध गरेमा वा आदेशवा फैसलाको अवज्ञा गर्दा अवहेलना कारवाही चलाउन सक्दछ ।

अदालतको अवहेलना ठहर भएमा सम्बन्धित अदालतले कसूरदारलाई एक वर्षसम्म कैद वा दश हजार रुपैयाँसम्मजरिवाना वा दुबै सजाय वा अन्य उपयुक्त आदेश गर्न सक्ने कानूनी व्यवस्था छ । तर, फैसला नहुँदै क्षमा मागेको अवस्थामा भने मुद्दाको कारबाही तामेली राख्न सकिने कानूनी व्यवस्था छ ।

‘अदालतको अवेहलनामा कारबाही चलाइएको व्यक्तिले मुद्दाको फैसला नहुँदै जुनसुकै अवस्थामा अदालतसमक्ष क्षमा माग्न सक्नेछ’ न्याय प्रशासन ऐन, २०७३ को दफा १७ को उपदफा (५) मा भनिएको छ, ‘त्यसरी क्षमा मागेको कुरामा अदालत सन्तुष्ट भएमा त्यस्तो मुद्दाको कारबाही तामेलीमा राख्न सक्नेछ ।’

त्यतिमात्रै होइन, अदालतको अवहेलनामा सजाय पाएको व्यक्तिले अदालतलाई सन्तोष हुने गरी क्षमा मागेमा अदालतले त्यस्तो सजाय कार्यान्वयन नगर्न, घटाउन, परिवर्तन गर्न वा शर्त तोकी त्यस्तो शर्त पुरा गरेमा सजाय कार्यान्वयन नगर्ने आदेश गर्न सकिने व्यवस्था समेत ऐनमा छ ।

‘कडा आवाजमा बोल्दा अदालत प्रभावित हुनसक्छ’

डा. विपीन अधिकारी
संविधानविद्

पूर्वप्रधानन्यायाधीशहरूले स्वतन्त्र नागरिकको हैसियतले आआफ्नो धारणा राखेका हुन् । राष्ट्रिय महत्वको विषयमा दृष्टिकोण राख्नुभएको हो । चारजनाको त्यो विज्ञप्ति कुनै बल देखाएको पनि होइन । पूर्वप्रधानन्यायाधीशहरूको भनाइ अदालत प्रति लक्षित पनि छैन । निर्णय प्रक्रियालाई असर पार्ने मनसाय राखेको पनि देखिँदैन । अवहेलना गर्नुपर्ने कारण र परिस्थति छैन ।

मूल समस्या के हो भने अदालतमा मुद्दा छ । प्रत्यार्थी प्रधानमन्त्री आफंै हुनुहुन्छ । उहाँविरुद्ध अदालतमा नालेस परिसकेको अवस्थामा जे पर्छ भनेर बस्नुपर्ने हो । प्रतिवाद गर्दै हिँड्ने होइन ।

अर्कोतिर, प्रधानमन्त्री भनेको शक्तिको प्रतिक पनि हो । त्यसकारण पनि उहाँले कडा आवाजमा बोल्दा अदालत प्रभावित हुन सक्छ । उहाँको पार्टीभित्रका प्रतिपक्षीहरू पनि निवेदन लिएर गएका छन् । उहाँहरूले अदालतलाई धम्क्याउन मिल्दैन । साँच्चै भन्नुहुन्छ भने सरकार र वैकल्पिक सरकार दुबै अदालती प्रक्रियाबाट बाहिर बस्नु पर्दछ ।

नागरिक समाज अदालत गएको पनि छैन । नागरिक समाजको सरोकार राज्य हो । त्यसकारण नागरिक समाजले आफ्नो धारणा राख्नु, टीकाटिप्पणी गर्नु स्वाभाविक हो ।

‘आलोचनाले कमीकमजोरी सच्याउन सघाउँछ’

गिरीशचन्द्र लाल
पूर्वन्यायाधीश, सर्वोच्च अदालत

सर्वोच्च अदालतमा अवहेलना मुद्दा दर्ता भइसकेपछि अदालतसँग दुईवटा विकल्प हुन्थे । पहिलो त्यो रिट खारेज र्न सक्दथ्यो । दोस्रो, लिखित जवाफ माग्न सक्दथ्यो । लिखित माग्दा पनि वारेसमार्फत वा आफंै उपस्थित हुनुपर्ने आदेश दिन सक्दथ्यो ।

सर्वोच्चको बेञ्चले दोस्रो विकल्प रोजेको देखिन्छ । बेञ्चलाई स्वयं उपस्थित भएर जवाफ दिनुपर्ने लागेको देखियो ।

मेरो सम्झना भएसम्म पूर्वप्रधानमन्याधीशमाथि यस्तो मुद्दा लागेको पहिलोपटक हो । बहालवाला प्रधानमन्त्रीलाई भने यसभन्दा अगाडि पनि बोलाइएको थियो ।

अवहेलना गरेको भनिएको भाषा प्रधानमन्त्रीज्यू, पूर्वसभामुख र पूर्वप्रधानन्यायाधीशहरूको भाषा फरक-फरक छ । प्रधानमन्त्रीज्यूले अदालतलाई ‘तमासा’ भन्ने शब्द प्रयोग गर्नुभएको छ । उहाँले प्रायः कडा शब्द प्रयोग गरिराख्नुहुन्छ ।

पूर्वसभामुख दमननाथ ढुंगानाले सतर्क गराउने भाषा प्रयोग गर्नुभएजस्तो लाग्छ । पूर्वप्रधानन्यायाधीशहरूले पनि विज्ञप्तिमा मुद्दासँग सम्बन्धित प्रत्यक्ष शब्द प्रयोग गरेको देखिएन । लोकतन्त्रमा त्यस्तो क्रियाकलापले अदालतको काम कारवाहीमा बाधा आएको छ कि छैन भनेर हेर्नुपर्ने हुन्छ ।

अदालतले न्यायसंगतरुपले फैसला गर्दछ भन्ने लाग्छ । न्यायका लागि सर्वोच्च अदालतमै भर पर्नु पर्दछ । कविर दासको एउटा शायर छ-

‘निंदक नियरे राखिए
आँगन कुटी छवाय
बीन पानी साबुन बिना
निर्मल करे सुभाय ।’

अर्थात् आलोचकलाई नजिक राखियो भने पानी र साबुनविनै सफाइ गर्न सकिन्छ । त्यस्तै आफ्ना कमीकमजोरी सच्याउन सकिन्छ ।
 

As lawyers pleading on behalf of petitioners challenging Prime Minister KP Sharma Oli’s House dissolution move continued to parse constitutional provisions, advocate Dinmani Pokhrel brought up one of Subas Nembang’s interviews in which the two-time Constituent Assembly chair said the current constitution does not allow a prime minister to dissolve Parliament.

Pokhrel presented before the court a magazine, titled Smarika, published by the federal parliament annually, in which the interview was published.

“We have accepted the existing parliamentary system as an improved parliamentary system. For instance, a no-confidence motion against the prime minister cannot be brought for two years, and once it is tabled another motion cannot be presented for another year,” Nembang has said in the interview. “On the basis of our past experience, we have included new provisions including the one that says the prime minister cannot dissolve Parliament.”

Nembang was explaining the major highlights of the new constitution in the interview published last year.

Lawyers on Monday also talked about a video clip that had recently gone viral, in which Nembang says the constitution does not allow the prime minister to dissolve the House.

In the video clip, posted on Twitter from the handle @jspanepal, which in its bio says “official twitter account of Journalists’ Society for Parliamentary Affairs”, Nembang is heard explaining why the provision of not allowing a prime minister to dissolve Parliament on a whim was inserted in the constitution.

“[In the past] whenever a prime minister was angry with lawmakers, he used to dissolve the Parliament. We removed that [provision] and now the prime minister cannot dissolve as we have excluded that provision,” Nembang is heard saying while speaking at a function organised by the Parliament Secretariat at Dhulikhel in July 2019.

“I made a plea before the justices to take them as persuasive evidence to know the intent of the drafters,” advocate Saroj Krishna Ghimire, the other lawyer to take part in the hearing on Monday, told the Post.

But Chief Justice Cholendra Shumsher Rana and Justice Sapana Malla Pradhan questioned whether such videos could be taken into consideration in court.

The Oli government has cited Articles 76 (1), 76 (7) and 85 for dissolving the House.

Chief Justice Rana has been constantly asking, at almost every hearing, why a prime minister cannot say he does not want to govern and seek a fresh mandate of the people.

But lawyers have argued that Articles 76 (1) and 76 (7) talk about the formation of a government, and since the issue is of House dissolution, the bench should look to legislative intent.

Legislative intent is defined as “the ends sought to be achieved by a legislature in an enactment.” Courts often look to legislative intent for guidance in interpreting and applying a law.

The drafters of the Constitution of Nepal 2015 say that taking the bad experience of political instability–frequent change of governments and prime minister dissolving the House at the drop of a hat–into account, they had debated at length before writing Article 76 (1) to Article 76 (7) so as to ensure that a prime minister has to fulfil various conditions for dissolving the House.

The drafters had also inserted a provision, which is not seen in any country practicing parliamentary democracy, that said a no-confidence motion cannot be moved against the prime minister for two years.

Article 100 (4) of the constitution states that a motion of no confidence shall not be tabled until the first two years after the appointment of the prime minister and until another year after the date of failure of such a motion.

Though what the lawyers presented before the five-member Constitutional Bench led by Chief Justice Rana are unlikely to be taken as evidence, experts say their attempt to request the bench to look to legislative intent is not wrong.

Balaram KC, a former Supreme Court justice, said the video clip and interview of Nembang are not accepted as evidence before the court of law but the question of legislative intent is justified.

“As some lawyers have demanded, transcripts of the debate during the constitution drafting process, [Constituent Assembly] committee notes and other records can be presented before the court as admissible evidence,” KC told the Post. “Such documents and records are intrinsic to the process and help in interpretation of the constitutional provisions.”

Though experts on constitutional matters have argued for long that the present constitution, prima facie, does not allow a majority prime minister to dissolve the House, Oli and those defending him have been presenting a different interpretation of constitutional provisions.

At Sunday’s hearing, when advocate Bhimarjun Acharya argued that the present constitution strictly bars the prime minister from dissolving the House, Chief Justice Rana had questioned: “Isn’t it the prime minister who dissolves the House as per Article 76 (7)?”

Experts on constitutional and legal matters say the constitutional provisions need to be followed both in letter and spirit.

When letters and words create ambiguity, interpreters should explore in what spirit they were written. That’s where legislative intent comes, according to the experts.

“In the current context, we should better call it the Constituent Assembly’s intent rather than legislative intent,” said senior advocate Chandra Kanta Gyawali, an expert on constitutional affairs. “Documents and transcripts of the constitution drafting process can help in understanding the intention of the drafters when they wrote those articles barring the prime minister from dissolving the House.”

Since 1990, four prime ministers have attempted House dissolution.

But all those attempts were made under the Constitution of Nepal 1990, which had vested in the prime minister the prerogative to dissolve the Parliament under Article 53 (4).

“The drafters of this constitution decided not to have any provision like the one in the 1990 constitution giving the prime minister the authority to dissolve the House at his will,” said KC. “The intent behind that was such a provision was doing more harm than good.”

However, there is a sizable number of experts who argue that a constitution not allowing the prime minister to dissolve the House is flawed because in the parliamentary system of democracy, the prime minister has an inherent power to dissolve the House.

Bipin Adhikari, a former dean of Kathmandu University School of Law, said since the current constitution has already robbed the prime minister of what is called his/her inherent power in the parliamentary democracy to dissolve the House, there is no problem in the current provisions and they are very clear.

“It was a well-thought-out decision to end instability,” said Adhikari. “The life of the House of Representatives is until when it is ended by effluxion of time five years from its first meeting. If that were to be changed, there must be an enabling provision, [and] that’s not in our constitution.”

According to Adhikari, despite clear provisions in the constitution, if there is any confusion–which actually should not be–the court could look to the intent of the Constituent Assembly by examining the transcripts, records and notes of the drafting process.

“Not allowing a prime minister to dissolve the House was a planned departure,” said Adhikari. “With no provisions in the constitution allowing the prime minister to end the life of the House, those who are defending the move are calling it a political decision.”

If there is any political figure in Nepal who has always demonstrated a strong position against amendments to the constitution, it is Prime Minister KP Sharma Oli. He has maintained a consistent position over the years that the constitution can be amended based on the rational and necessity.

After securing a thumping victory in the 2017 general election, Oli became prime minister in February 2018. On May 28 that year, he signed a two-point agreement with then Sanghiya Samajbadi Forum Nepal, agreeing to amend the constitution “on the basis of mutual agreement”. The Upendra Yadav-led Sanghiya Samajbadi Forum joined the Oli government, while then Rastriya Janata Party decided in March that year to extend its support from outside in hopes that the constitution would be amended.

However, that didn’t happen. Both the parties withdrew their support to the government in 2019.

Oli had even rejected the proposal of Yadav, who was a deputy prime minister, to form an expert panel to make recommendations for the amendments. Yadav, along with Mohammad Istiyak Rai, who was minister for urban development, quit the government in December 2019. The Rastriya Janata Party had already withdrawn its support in March 2019.

But when Oli decided to dissolve the House of Representatives on December 2o last year and call snap polls, he argued that he needed a majority government to accomplish, among other things, constitutional amendments.

“Since political parties too have been demanding an amendment to the constitution time and again and timely amendments have not been possible due to the lack of a two-thirds majority for the ruling party, a majority government is essential,” states the letter undersigned by Prime Minister Oli, recommending that the President dissolve the House and declare snap poll for April 30 and May 10.

“Also, to implement the decision to bring back its land included in the country’s map, a two-thirds majority government is needed.”

Oli’s argument has raised many an eyebrow, as it comes as his admission that the constitution does need an amendment, an action that he was reluctant to perform.

But why?

Observers and political leaders say more than the realisation that the constitution needs an amendment, it is Oli’s political (election) tactic to woo some constituencies.

“I don’t believe Oli, who has even rejected the idea of forming a taskforce to study the need for amendments, actually wants to revise the constitution,” Bipin Adhikari, former dean at Kathmandu University School of Law, told the Post. “This is his tactic to woo the people [mainly from the Tarai/Madhes] who have long been demanding revision to certain provisions of the charter.”

According to Adhkari, Oli will never go for any constitutional amendments.

Oli’s House dissolution move has attracted widespread opprobrium, with political parties, experts on constitutional affairs and civil society members calling the action unconstitutional and an attack on the constitution.

The Janata Samajbadi Party, which was born out of a merger between the Sanghiya Samajbadi Forum Nepal and Rastriya Janata Party, which had once protested against the constitution promulgation, has taken to the streets demanding that the constitution must be protected as Oli has made a brutal assault on it.

Chandra Dev Bhatta, a political commentator for the Post’s sister paper Kantipur, said Oli through the reasons presented for the House dissolution has accepted that the constitution needs a revision for its wider acceptability.

“Though many things remain unclear, this is fact that Oli now has accepted there are some issues in the constitution that need to be fixed,” Bhatta told the Post. “He might have realised the fact that an amendment to the charter could only give it a wider acceptability.”

Like Adhikari, Bhatta also believes that Oli might also be trying to give his image a makeover, as he is known as a leader who is intolerant of Madhes and the Madhesi people.

Though the House dissolution move is being heard by the Supreme Court, Oli has been claiming that elections would take place on the declared dates.

Lately, Oli has been delivering speeches in such a way as if he is on an election trail. A few weeks ago, Oli ordered the leaders of his party’s youth wing to organise what they called a “dhoti rally”, bringing the people of Tarai/Madhes to Kathmandu. Observers had branded it as a farce, calling it Oli’s futile attempt to win over some constituencies in the plains.

Shree Krishna Aniruddha Gautam, a political analyst, said Oli knows he needs to please the Madhesi and marginalised communities when he goes for elections and that’s why he has now accepted that the constitution needs a revision.

“It’s not that Oli did not know that the constitution needed amendments as some sections of the society were raising their voices for the same,” Gautam told the Post. “It looks like he is now using the charter revision as a tool to widen his constituency if elections happen.”

When Oli returned to power, he had majority votes in Parliament because his CPN-UML and Pushpa Kamal Dahal’s Maoist Centre had merged to form the Nepal Communist Party.

But the House dissolution has cleaved the Nepal Communist Party in two. A sizeable number of leaders and cadres are with the other faction of the Nepal Communist Party which is now led by Dahal and Madhav Kumar Nepal, Oli’s arch-rival in the then UML party.

Many say Oli has, in the letter recommending the House dissolution, has also argued that he needs “a two-thirds majority government” to work in favour of the country without any hurdles, conclude the peace process and address the problems facing the country in an effective manner.

But it is unclear how snap polls can guarantee a majority government in a country which has seen a hung parliament for decades. It’s also unclear what makes Oli so confident that he will get to lead a two-thirds government if elections do happen on the declared dates.

Until Friday, it was not known to the public what reasons Oli had presented while recommending the House dissolution. But since the letter has surfaced in the media, many are now wondering if Oli has some sinister motives, as he has stressed the need for a two-thirds majority government to amend the constitution.

Hari Roka, a political economic commentator, said the amendment issue has been raised mainly by those people who are for strengthening federalism.

“However, Oli has always worked against federalism. So it looks like his amendment calls are guided by his intent against the federal set-up,” said Roka. “I don’t think Oli dissolved the House to hold the elections. In case he holds elections and goes for an amendment, his aim will be to attack federalism.”

Yadav, chairman of the Janata Samajbadi Party, said the constitutional amendment argument is nothing but Oli’s yet another political stunt.

“He commanded a two-thirds majority but he was afraid to even form a panel to study if amendments were required,” Yadav told the Post. “We had joined the government on the condition that the Oli government would amend the constitution. Since he refused, we decided to walk away.”

According to Yadav, Oli’s arguments are inconsistent.

“There is no coherence in his arguments,” said Yadav. “He says he needs a two-thirds majority and for that he dissolved the House. How does he know he will win a two-thirds majority in the midterm polls, when his party also has split.”

But some say Oli might have worked out some kind of deals with some sections of the political parties, including the Nepali Congress and the Janata Samajbadi Party.

According to Shyam Shrestha, a political analyst who has followed Nepal’s leftist politics for decades, Oli might be under the impression that he could garner support of the Congress, Janata Samajbadi Party and Rastriya Prajatantra Party.

While the Congress has refused to join the Dahal-Nepal faction and Janata Samajbadi Party for a joint protest, Rastriya Prajatantra Party, a pro-monarchy, pro-Hindu party, has welcomed Oli’s decision to call snap polls.

“The way Sher Bahadur Deuba, the Congress president, has made some statements and some pro-monarchy, pro-Hindu lawyers have rushed to defend Oli in the court also shows there could be some kind of deals,” said Shrestha.

That said, according to Shrestha, it will be wrong and premature to assume that Oli would get a two-thirds majority if elections do happen.

“His confidence could be misplaced also. Confidence in politicians comes from three factors—popularity because of good governance, foolishness, and excessive self belief that they can take people for a ride easily,” Shrestha told the Post. “In Oli’s case, the latter two factors seem to be working.”

Nepal’s present constitution was seven years in the making. It took two 601-member Constituent Assemblies, elected in 2008 and again in 2013 as the first one could not agree on the finer points, and billions of rupees for one to be finally drafted.

When it was promulgated on September 20, 2015, leaders thumped their chests claiming it to be the best constitution in the world.

The subsequent general elections in 2017 based on the new constitution, installed KP Sharma Oli as the prime minister in February 2018.

However, Oli’s actions over the past years have not only weakened the constitution but also exposed some fundamental flaws its drafters had failed to foresee.

Days before he dissolved the House of Representatives, Oli on December 15 had introduced an ordinance on the Constitutional Council Act, amending some provisions regarding the quorum for the holding of the meeting and making recommendations.

As per the constitutional provisions, the Council is led by the prime minister with chief justice, House Speaker and deputy Speaker, National Assembly chair and leader of the main opposition as members.

After massive criticism, Oli agreed to withdraw the ordinance but he did not. Instead, the Council made some recommendations.

As many as three separate petitions were filed at the Supreme Court challenging the recommendations made by the Council. The petitions were sent to the Constitutional Bench to test the constitutional validity of the recommendations.

And here’s the catch. In his writ petition against the ordinance and subsequent recommendations by the Constitutional Council, advocate Om Prakash Aryal has named Chief Justice Cholendra Shumsher Rana as one of the defendants. As a member of the Council, Rana was present in the meeting that made the recommendations.

Lawyers are now questioning if the chief justice can sit on the bench which is hearing a case on which he is one of the defendants.

As per the principle of natural justice, party to a dispute cannot sit on a bench that is tasked with delivering justice.

Legal experts say that the case has highlighted the shortcomings of the constitution.

According to Balram KC, a former Supreme Court justice, making the provision for the chief justice to be part of the Constitutional Council was a mistake.

“Recommending names for constitutional bodies is purely an administrative task,” KC told the Post. “The chief justice of the country should not have been accommodated in the Council. This is one of the defects of the constitution.”

In the judicial process, justices often follow their own wisdom, instinct and convention and decide to recuse themselves whenever a conflict of interests arises.

Though a little late, Justice Hari Krishna Karki on Wednesday recused himself from continuing hearing on the writs petitioned against the Oli government’s House dissolution move after lawyers questioned why he was present on the Constitutional Bench.

Lawyers had argued that since Karki as attorney general in 2015 had served as the legal counsel to Oli and his government then, he could not hear the writs that have made Oli the defendant.

The problem with regards to the constitutional appointment recommendations, however, is that the chief justice cannot recuse himself.

It’s because of the failure of the drafters of the constitution to foresee such a situation, according to some legal experts.

Article 137 (1) of the constitution says the chief justice and four other Supreme Court justices will constitute the Constitutional Bench.

The constitution does not envision the Constitutional Bench without the chief justice.

Bipin Adhikari, former dean of the Kathmandu University School of Law, said the constitution makers failed to see a situation where the chief justice could be a defendant in a case which would require a serious constitutional explanation, meaning the case must be heard by the Constitutional Bench.

“They failed to insert the exception clause which invited the current situation,” Adhikari told the Post.

Article 137 (3) authorises the chief justice to allocate the cases under consideration at the Supreme Court containing questions of serious constitutional explanation to the Constitutional Bench.

At least three leaders, who were in the Constitution Drafting Committee of the Constituent Assembly, the Post talked to admitted that they couldn’t foresee such a situation during the drafting process.

Krishna Bhakta Pokharel, a member of the Judiciary Committee under the drafting committee, said their discussions were more focused on whether to constitute a separate Constitutional Court or to go for a Constitutional Bench.

He said that the decision to have a provision for a Constitutional Bench was a compromise, as the Nepali Congress and the erstwhile CPN-UML did not want a separate Constitutional Court and instead wanted all the issues related to the constitution to be decided by the Supreme Court.

“So we took a middle path and agreed on the Constitutional Bench,” Pokharel told the Post. “The present dilemma wouldn’t have arisen had we agreed not to form any such mechanism.”

While the option between a Constitutional Court and a Constitutional Bench was debated for days, there was no foresight that mandatory involvement of the chief justice might invite trouble, according to those involved in the constitution drafting process.

“The problem would have been sorted out had we included a line saying chief justice or the senior most justice of the Supreme Court would lead the Constitutional Bench,” Rewati Raman Bhandari, a member of the drafting committee, told the Post. “We must admit that there are lapses in the constitution.”

But some members of the Constituent Assembly, who were directly involved in the drafting process, are more sanguine about it and say the constitution is an evolving document and it can be amended as and when necessary.

“There are many issues that surface with practice,” Sher Bahadur Tamang, another member of the drafting committee, told the Post. “We have to rectify them.”

According to Tamang, who was also a law minister in the Oli Cabinet, too said a Constitutional Bench became a part of the constitution as a compromise.

Adhikari said that if the current situation has brought to the fore the shortcomings in the constitution, it has also provided an opportunity to set precedents, as the Supreme Court, after all, is the ultimate arbiter of the country’s top law.

“Everything is not written in a constitution and the Supreme Court has the right to interpret it,” said Adhikari. “As per the principle of casus omissus, the Supreme Court can fill up the gap in the constitution and law based on other principles of constitution and recognised principle of justice.”

Oli’s decision to dissolve the House has put the country’s judiciary to the test, with opinions divided over whether his move is constitutionally valid. Experts on constitutional matters have called Oli’s action outright unconstitutional. Oli and his loyalists, however, have been trying to justify his move, saying the constitution “does allow” him to dissolve the House. On Friday, four former chief justices issued a statement, describing the House dissolution as an unconstitutional move.

Some media reports even suggest Oli took the step in close consultation with the chief justice.

During the first hearing on a regular bench against the House dissolution on December 23, Chief Justice Rana had even asked one of the lawyers why “it is wrong when a prime minister elected under Article 76 wants to seek a fresh mandate”, exactly the same argument Oli has been making to defend his House dissolution move.

As far as writs against Constitutional Council recommendations are concerned, according to KC, the Constitutional Bench should proceed without the chief justice.

“From the perspective of fair hearing and trial, the chief justice should not be part of the bench which has to test the constitutionality of a decision of which he is a part,” KC told the Post. “The best option would be for the chief justice to avoid the Constitutional Bench by declaring that despite the constitutional provision, he has formed the bench minus him because he himself is a defendant in the case.”

Senior advocate Bhimarjun Acharya, who specialises on constitutional law, however, said that there is no need for the chief justice to avoid the Constitutional Bench even though there is a conflict of interest because of a clear constitutional provision.

“We should not expect the chief justice not chairing the Constitutional Bench and not participating in decision-making,” he said. “But he and other judges on the bench must be impartial on their decision making based on the merit of the case. This could be the best option available today.”

The principle behind the five-member Constitutional Bench is a decision can be taken on majority basis when justices have different opinions.

If the chief justice does continue on the bench but does not give his opinion because he is party to the case, a possibility of a deadlock in making the final decision could arise.

Pokharel, the member of the Constitution Drafting Committee of the Constituent Assembly, said the case can be sent to the full bench of the Supreme Court instead of the Constitutional Bench if the chief justice cannot hear it because he is party to it.

“There is no constitutional compulsion that the Constitutional Bench has to hear the writ,” Pokhrel told the Post. “It can be resolved by the full bench sans the chief justice.”

प्रधानमन्त्री केपी शर्मा ओलीले प्रतिनिधिसभा विघटन गरेपछि उक्त निर्णयविरुद्ध सर्वोच्च अदालतमा परेको रिटको सुनुवाइ विचाराधीन छ।

प्रधानमन्त्री स्वयम्‌ले विघटन गर्नुको कारणसमेत खुलाएर लिखित जवाफ अदालतमा पेश गरिसकेका छन्।

पुष २२ गतेदेखि निरन्तर सुनुवाइ हुने भनिएको उक्त रिटको अर्को सुनुवाइ पुष २९ गते हुने भनिएको छ।

रिटको सुनुवाइ संवैधानिक इजलासले गर्ने वा बृहत् पूर्ण इजलासले गर्ने भन्नेबारे अदालतभित्र छलफल भइरहेको बताइन्छ।

तर अदालतमा विचाराधीन रहेको र आफैँ विपक्षी रहेको मुद्दाबारे निर्णय प्रभावित गर्ने गरी प्रधानमन्त्रीले अभिव्यक्ति दिन नहुने कानुनका जानकारहरू बताउँछन्।

सार्वजनिक कार्यक्रममा विचाराधीन मुद्दाबारे बोल्दै आएका प्रधानमन्त्री केपी शर्मा ओलीले शुक्रवार धनगढीमा भएको कार्यक्रममा “प्रतिनिधिसभा पुनर्स्थापना असम्भव” भएको बताएका थिए।

पुषको पहिलो साता प्रतिनिधिसभा विघटन गरेयता सर्वोच्चमा त्यसै विषयसँग सम्बन्धित करिब एक दर्जन रिट विचाराधीन रहेका बेला ओलीले वैधानिक र कानुनी रूपमा संसद्को पुनर्स्थापना सम्भव नरहेको बताएका थिए।

मुद्दाको एउटा पक्ष भएर लिखित जवाफ पनि पठाइसकेका बेला अब मुद्दाको बारेमा देशको कार्यकारी भएर बोल्नु राम्रो नहुने पूर्व न्यायाधीश बलराम केसी बताउँछन्।

“देशको प्रधानमन्त्रीले आफू पक्ष भइसकेपछि लिखितजवाफ बुझाएिछि यो मुद्दा जितिन्छ भनेर भन्नुहुँदैन,” पूर्व न्यायाधीश केसीले बीबीसीसँग भने।

“उहाँले अदालतको मान र मर्यादा राख्न पनि अदालतमा मुद्दा छ अदालतले जे गर्छ भन्नुपर्नेमा त्यो ठोकुवा गरेर हिँड्नु हुँदैन यो अलिकति सीमा नाघेको देखियो।”

संविधानविद् विपिन अधिकारी पनि विचाराधीन मुद्दामा प्रधानमन्त्रीले बारम्बार आफ्ना कुरा दोहोर्‍याउँदै हिड्न र त्यसको बचाउ गर्न आवश्यक नरहेको बताउँछन्।

“प्रधानमन्त्रीको अभिव्यक्तिले सर्वोच्चको आफ्नो क्षमतालाई अवरोध गर्न खोजेको देखिन्छ। त्यो विषयमा प्रधानमन्त्री आफैँ जागरूक हुन आवश्यक छ,” संविधानविद् अधिकारीले भने।

प्रधानमन्त्रीको अभिव्यक्तिलेअदालत प्रति ठाडो चुनौती दिएको नदेखिए पनि इजलासले त्यसबारे प्रधानमन्त्रीलाई सचेत गराउन सक्ने उनले बताए।

“इजलास आफैँले यसबारे प्रधानमन्त्रीलाई जागरुक गराउन पनि सक्छ वा वकिलहरूले त्यसबारे कुरा उठाएर अन्तरिम आदेशको माग पनि गर्न सक्छन्,” उनले भने।

संविधानविद् भीमार्जुन आचार्य विचाराधीन मुद्दामा प्रधानमन्त्रीलाई मुद्दामा “यही हुन्छ भनेर अभिव्यक्ति दिँदै हिड्ने” अधिकार नरहेको बताउँछन्।

प्रम ओलीको अभिव्यक्तिले “न्यायपालिकालाई प्रभावित गर्न खोजेको देखिएको” र “न्यायपालिकाको स्वायत्ततालाई सम्मान गर्न नचाहेको देखिएको” आचार्यले बताएका छन्।

विगतमा सरकार प्रमुखहरूले अदालतप्रति बोलेको विषयबारे अवहेलनाका थुप्रै मुद्दा लागेको भन्दै उनले बताए।

“अहिले प्रधानमन्त्रीको अभिव्यक्तिबारे अदालतले आफैँ जानकारी लिन सक्छ वा कसैले यसबारे मुद्दा हाल्नसक्छ,” आचार्यले भने।

तर पूर्व न्यायाधीश केसीले भने प्रधानमन्त्री ओलीको त्यति अभिव्यक्तिकै लागि अदालतको अवहेलना मुद्दा लगाउन नहुने बताउँछन्।

“त्यति बोल्दैमा अदालतको अवहेलना ठान्नुहुँदैन। अदालतले सहन सक्नुपर्छ। अदालतलाई होच्याउने काम गर्नुहुँदैन। त्यति उग्र हुनहुँदैन,” पूर्व न्यायाधीश केसीले भने।

पूर्व प्रधानन्यायाधीशको अभिव्यक्ति कति उचित?

यसैबीच प्रतिनिधि सभा विघटन असंवैधानिक भन्दै चार पूर्व प्रधानन्यायाधीशहरू मीनबहादुर रायमाझी, अनुपराज शर्मा, कल्याण श्रेष्ठ र सुशिला कार्कीले शुक्रवार संयुक्त विज्ञप्ति निकालेका थिए।

‘नेपालको संविधान २०७२को धारा ७६ मा मन्त्रिपरिषद् गठन गर्ने सिलसिलामा वा सो प्रयोजनका लागि बाहेक कुनै अवस्थामा पनि प्रतिनिधिसभा विघटन गर्ने अधिकार एवम् व्यवस्था नगरिएको अवस्थामा पनि आकर्षित नहुने धारा ग्रहण गरी प्रतिनिधिसभा विघटन गरिएको पाइन्छ,’ शुक्रवारको विज्ञप्तिमा भनिएको छ।

‘दलहरूको आन्तरिक द्वन्द्व वा खिचलोजस्तो कुनै परिस्थितिले जुन प्रयोजनका लागि जे कुरा गर्न व्यवस्था गरिएको छ, सोबाहेकको कार्यमा उक्त धारा आकर्षित हुँदैन।’

उनीहरूको यो अभिव्यक्तिलाई लिएर सामाजिक सञ्जालमा पक्ष/विपक्षमा तर्कहरू भएका छन्।

कतिपयले विचाराधीन मुद्दामा पूर्वप्रधानन्यायाधीशहरूले पनि आफ्नो राय व्यक्त गर्न नहुने बताएका छन् भने कतिपयले राष्ट्रिय सरोकारको विषयमा अदालतलाई प्रभावित नहुने गरी आफ्नो धारणा राख्नु उचित भएको बताएका छन्।

पत्रकार बबिता बस्नेतले ट्विटरमा पूर्व प्रधानन्यायाधीशहरूले प्रतिनिधि सभा विघटनसम्बन्धी निकालेको विज्ञप्ति उचित नभएको आशयको ट्वीट गरेकी छन्।

त्यस्तै पत्रकार अमीत ढकालले पनि यस विषयमा ट्वीट गरेका छन्। 

“कार्यपालिका प्रमुखले ‘संसद विघटन संविधानसम्मत छ, संसद पुनर्स्थापना हुन्छ भन्ने सपना नदेखे हुन्छ’ भन्दै दिनरात भाषण गर्दा ताली पिट्नेहरूले भनेको– नागरिक बनिसकेका पूर्वप्रधानन्यायाधीशहरूले ‘संसद विघटन असंवैधानिक’ भन्दै बोल्न मिल्दैन रे!”

संविधानविद्हरू विपिन अधिकारी र भिमार्जुन आचार्य दुवैले राष्ट्रिय महत्त्वको विषयमा बहस भइरहँदा पूर्वप्रधानन्यायाधीशले आफ्नो अभिव्यक्ति राख्नुलाई सामान्य मान्नुपर्ने बताएका छन्।

संविधानविद् अधिकारी भन्छन्, “अपवादको अहिलेको विशिष्ट अवस्थामा उहाँहरूको अभिव्यक्ति आउनुपर्थ्यो।”

A hearing on writs against Prime Minister KP Sharma Oli government’s decision to dissolve the House of Representatives was adjourned on Wednesday after Justice Hari Krishna Karki recused himself from the Constitutional Bench.

Karki was picked as one of the four members of the Constitutional Bench by Chief Justice Cholendra Shumsher Rana.

Rana leads the bench.

Rana’s decision to pick Karki had run into controversy when the Constitutional Bench started a hearing on December 25. Justices Bishowambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC are the other members of the Constitutional Bench. Rana had selected the four justices from the roster of 14. He had decided to continue with the same composition on Wednesday.

“Justice Karki decided not to be part of the Constitutional Bench that is hearing the writs against dissolution of the House of Representatives,” Kishor Poudel, a communication expert at the Supreme Court, told the Post. “The chief justice will pick another justice to replace Karki.”

When the hearing began on Wednesday, advocates Shambhu Thpaa, Dinesh Tripathi and Mukti Pradhan, among others, who argued on behalf of the petitioners, questioned if Karki could sit on the bench.

“It’s not that we are doubting Karki’s competence,” Tripathi told the Post. “However, it is an ethical issue. It is good that he opted out of the bench.”

The advocates on Wednesday had questioned Karki if he should sit on the bench if he believed in the principle of natural justice.

During his first stint as prime minister in 2015, Oli had appointed Karki as the attorney general.

By virtue of being the attorney general, Karki hence was the chief counsel to Oli and his government then.

Since the case being heard by the court is also against Oli and his government, advocates had raised questions about Karki’s presence on the bench.

Apart from questioning Karki on the bench, advocates on Wednesday also argued that the writs be sent to an extended full bench of the Supreme Court.

As many as 13 writs have been filed at the Supreme Court challenging Oli’s decision to dissolve the House of Representatives on December 20. Petitioners and experts on constitutional affairs say Oli made an extra-constitutional move by dissolving the House, as the constitution does not allow him, as a majority prime minister, to do so.

After a preliminary hearing on December 23, a single bench of Chief Justice Rana had decided to forward 12 writs—one had already been sent—to the Constitutional Bench.

The bench on December 25 had heard opening remarks from lawyers arguing on behalf of the petitioners and issued a show-cause notice to the Oli government and the Office of the President demanding reasons for dissolving the House.

As per Clause 22 of the Supreme Court Regulation, an extended full bench means a bench comprising five or more justices. Such a bench is formed to interpret complex legal or constitutional questions.

Though there were debates whether there should be a separate Constitutional Court, the drafters of the constitution had agreed to have a Constitutional Bench under the Supreme Court to decide matters should a serious constitutional confusion arise.

As per Article 128 (1) of the constitution, the Supreme Court has the final power to interpret the constitution and laws.

Article 137 talks about the formation of the Constitutional Bench.

According to Article 137 (1), the Constitutional Bench hears and takes decisions on disputes over the jurisdiction between the federation and a province, between provinces, and between a province and a local level. Article 137 (3) authorises the chief justice to allocate the cases under consideration at the Supreme Court containing questions of serious constitutional explanation to the Constitutional Bench.

Advocates on Wednesday, however, argued that Oli’s House dissolution move was prima facie unconstitutional, that it did not need serious constitutional explanation and that a decision can be made by an extended full bench rather than the Constitutional Bench.

Chandra Kant Gyawali, a senior advocate who is arguing on behalf of the petitioners, said the hearing next week will start with arguments whether or not to send the 13 writs filed against the dissolution of the House to the extended full bench.

After Karki recused himself, the next hearing has been scheduled for January 13.

If the Constitutional Bench, after the next hearing, agrees to send the writs to an extended full bench, such a bench consisting of 9 to 11 justices needs to be constituted.

“The constitution says the Supreme Court—not the Constitutional Bench—is the final interpreter of the constitution,” said Gyawali. “Similarly, the court in the past has approved the House dissolution twice and rejected such a move as many times. So we don’t have a set precedent.”

In 1994 and 2002, the Supreme Court had approved the moves of then prime ministers Girija Prasad Koirala and Sher Bahadur Deuba of dissolving the House of Representatives, while it had rejected Manmohan Adhikari and Surya Bahadur Thapa governments’ similar moves in 1995 and 1998, respectively.

Gyawali said there has been a practice in the past to form an extended full bench on such issues.

“The five-member Constitutional Bench is too small to decide on the matter,” Gyawali told the Post.

Not all agree though.

According to Bipin Adhikari, former dean at the Kathmandu University School of Law, the Constitutional Bench can decide on the matter.

“This is a straightforward case of breach of the constitution,” Adhikari told the Post. “There is no complexity in this case as the dissolution of the House doesn’t stand any constitutional ground.”

Since the next hearing on January 13 will focus on whether the Constitutional Bench should continue or send the case to an extended full bench, a final decision is likely to take time.

“I don’t see the need for an extended full bench,” said Adhikari. “This will only delay the decision-making process.”

KATHMANDU, Jan 4: Not only the constitutional experts but also the general public have grown worried as top leaders of the rival factions of the ruling Nepal Communist Party (NCP) are engaged in issuing veiled threats to the Supreme Court, which is due to pass its verdict on Prime Minister KP Oli’s controversial decision to dissolve the lower house of the federal parliament.

While the top leaders of the Pushpa Kamal Dahal and Madhav Kumar Nepal-led faction have repeatedly said in a veiled threat that “they believe that the Supreme Court will revoke the decision to dissolve parliament” and that ‘they will be forced to retaliate if the decision is not revoked’, Prime Minister KP Oli and leaders close to him have been maintaining in public that the apex court does not have any ground to revoke the decision and that it is competent enough to quash the claims made by the Dahal-Nepal faction.

Legal experts have warned that such attempts by both factions to put undue pressure on the court to issue a verdict in their favor will only further erode whatever little integrity the country’s judiciary has been able to safeguard so far. But it is immature to predict the verdict or assert that the verdict will be in their favor when the case is still sub judice.

Worried over such attempts by the top leaders in the recent mass gathering of leaders and cadres close to them, senior advocates and constitutional experts have expressed serious concern over the fate of the country’s judicial system itself. “It is the sole right of the Supreme Court to make decisions on any dispute. Making statements that issue veiled threats to the court or try to pressure or persuade it helps no one,” constitutional expert Bipin Adhikari tweeted while referring to the remarks of top leaders of both the Oli and Dahal-Nepal faction of the NCP.

Senior journalist Kanak Mani Dixit seconded him saying such attempts by the top leaders will further erode the integrity of the judiciary as a whole. “Prime Minister Oli and the Dahal faction are supposed to put forth their arguments before the public. But they cannot make predictions or make statements with certainty about the decision to be made by the court,” he tweeted.

At least 12 writ petitions have been filed at the apex court over the decision of Prime Minister Oli to dissolve the House of Representatives (HoR) on December 20. After a preliminary hearing made earlier last week, a constitutional bench at the apex court is scheduled to conduct a hearing on the writ petitions again on Wednesday.

Responding to a show-cause notice issued by the Supreme Court on December 25 last year, Prime Minister Oli has defended his move saying dissolving parliament was a political move and that it does not warrant any judicial review. In the response furnished to the apex court through the Attorney General on Sunday, Oli argued that his decision to recommend to the President to dissolve the lower house of the federal parliament and the President’s endorsement of the same were purely political decisions.

While arguing that the government could not fulfill its promises made through the elections due to the growing conflict within the party, Prime Minister Oli has said that he, therefore, decided to go to the people to seek a fresh mandate. New election dates have already been announced for April 30 and May 10.

The Dahal-Nepal faction, however, has been maintaining that the current constitution does not provide any ground to dissolve parliament. Although President Bidya Bhandari has cited Article 76 (1 and 7) and Article 85 of the Constitution of Nepal for the dissolution of parliament as recommended by Prime Minister Oli, the faction has argued that these constitutional provisions do not allow the prime minister to dissolve parliament in current political circumstances and warned of taking to the streets if the decision to dissolve parliament was not revoked.

As a search committee formed to recommend names of vice-chancellor candidates for Kathmandu University plans to start the selection process within a week, the incumbent and former university officials have demanded for a standard selection criteria.

The 88th senate meeting of the university on December 29 had formed a three-member search committee, led by Minister for Education Krishna Gopal Shrestha, to find a successor to incumbent KU Vice-chancellor Dr Ram Kantha Makaju, whose term expires on January 21.

Daman Nath Dhungana, chair of the Board of Trustee at the university, and Suresh Raj Sharma, former vice-chancellor at the university, are two other committee members.

The committee will recommend three names of potential vice-chancellor and Prime Minister KP Sharma Oli, as an ex-officio university chancellor, will pick one of the candidates to lead the varsity.

But before the committee starts its selection process, the incumbent and former university officials have called for a standard selection criteria in view of the controversies the KU has faced over Makaju’s appointment and the way he led the university.

Tanka Nath Sharma, former dean at the KU School of Education, said since the university’s reputation was smirched by various controversies in the last eight years, the search committee must recommend candidates who can elevate the eminence and dignity of the university.

“Suresh Raj Sharma and his team have made immense contributions to establish the university and turned it into a prestigious institution ,” Sharma told the Post. “The committee must recommend candidates who can continue KU’s legacy, something that Makaju could not do.”

The search committee is set to hold its first meeting within a week to discuss the candidates.

Sharma, the former KU vice-chancellor, said they will have a preliminary discussion in the meeting, where Minister Shrestha will recommend some of the candidates while he and Dhungana will recommend theirs.

“The committee will have a couple of sittings before deciding the candidates,” he told the Post. “We will recommend the names of the most deserving candidates, those who are capable and competent to lead the university.”

Sharma and Dhungana were also involved in the previous recommendation committees that had proposed Makaju’s name in 2012 and 2017.

In 2017, several university officials had demanded that the committee draw up criteria for selecting vice-chancellor candidates. But it was not followed.

“The search committee has the opportunity to correct its past mistake,” Bipin Adhikari, former dean at the KU School of Law, told the Post. “There should be a justification behind every name recommended by the search committee.”

Makaju, the incumbent vice-chancellor, led the varsity for two terms, which observers say was enough to execute his plan and policies. They say the leadership should now be given to someone who can run the university in a better way.

Sharma, the former vice-chancellor, said while Makaju deserves all the credit for turning Dhulikhel Hospital into one of the best community hospitals in the country, he failed to lead the university.

“Politicisation increased during his tenure while several of his decisions were controversial,” Sharma said. “He has been accused of nurturing groupism and targeting his dissidents.”

Makaju succeeded Sharma as the KU vice-chancellor in 2012 and he was reappointed in January 2017.

At the time of his appointment in 2012, there were allegations that Makaju got the position on the condition of granting the KU affiliation to Birat Medical College in Morang and Devdaha Medical College in Rupandehi.

The two medical schools were eventually allowed to conduct MBBS courses as the university’s extended programme.

Talking to the Post in December 2014, Makaju had said that the two medical schools would operate entirely under the KU—that their students would submit their fees to the university and the university would directly oversee the appointment of faculty members.

However, after paying the first fee instalment to the university, both medical colleges started operating as independent entities.

In an interview with the Post in January last year, Makaju had rubbished the allegations against him and claimed that the university had progressed under his leadership.

Meanwhile, questions are also being raised over the search committee itself.

During last week’s senate meeting of the Kathmandu University Professors’ Association, senate members had expressed reservation over Sharma and Dhungana’s repeat involvement in the search committee.

This is the third time Sharma has been picked in the committee. For Dhungana, it is the sixth time.

“Why should the same people always be in the search committee,” Bivek Baral, chairperson of the association, told the Post. “We wanted Bhadra Man Tuladhar, founding registrar at the university; Kedar Bhakta Mathema, former vice-chancellor of Tribhuvan University; or Mana Prasad Wagle, former dean at the university, in the committee.”

As the political crisis unfolds in Kathmandu after Prime Minister KP Sharma Oli’s move of dissolving the House of Representatives, which resulted in the split of the Nepal Communist Party, Foreign Minister Pradeep Gyawali is set to travel to New Delhi next month.

Gyawali confirmed to the Post about his visit to the southern neighbour.

“I will be travelling to New Delhi sometime in January, but the exact date is yet to be fixed,” Gyawali told the Post.

Sources at the Prime Minister’s Office said that two different dates are being considered by both sides for Gyawali’s visit–January 13-14 or January 14-15.

Gyawali will lead the Nepali delegation at the sixth meeting of Nepal-India Joint Commission, the highest mechanism between Nepal and India to deal with the entire gamut of bilateral issues.

Apart from attending the meeting, Gyawali is likely to hold other engagements with the Indian leadership. However, no details were immediately available.

The visit is expected to be significant in the changed context, though.

After months of squabbling within the Nepal Communist Party, Oli on December 20 suddenly dissolved the House of Representatives and declared snap polls for April 30 and May 10.

Over a dozen writ petitions challenging Oli’s decision to dissolve the House are being heard in the Supreme Court.

If the court upholds the House dissolution, the country will head for the polls, but many are sceptical if Oli really is willing to hold the elections and whether they are possible from the logistical point of view—within a few months from now and amid the pandemic.

A high-level Chinese delegation, which arrived in Kathmandu on Sunday, had also sought to know whether restoration of the House is possible and if the House is not restored, whether elections will take place on the declared dates. The delegation led by Guo Yezhou, a vice minister in the International Department of the Chinese Communist Party, left Kathmandu on Wednesday after holding a series of meetings with the Nepali leadership.

The Chinese, according to leaders, also wanted to know if the two factions of the Nepal Communist Party, led by Oli and Pushpa Kamal Dahal, could come together again.

Gyawali’s visit to the south is, therefore, taking place on the heels of rapid political developments in Kathmandu and a renewed interest in Nepal from the north.

Gyawali’s will be the first high-level visit to New Delhi from Kathmandu in over a year, as bilateral relations between the two neighbours took a dip back in November last year after the Indian government, in its new political map, put Kalapani within India’s borders.

Nepal objected to the move and sought diplomatic dialogue, only to get a cold shoulder from New Delhi. Ties hit a new low when India opened a road link via Lipulekh to Kailash Mansarovar in the Tibet Autonomous Region of China and the Oli government responded by publishing a new map of Nepal depicting Kalapani, Lipulekh and Limpiyadhura as parts of the Nepali territory.

Nepal-India relations showed signs of improvement after Delhi made a rapprochement by sending its spy chief Samanta Goel, army chief MM Naravane and Foreign Secretary Harsh Vardan Shringla between the third week of October and the end of November.

China responded quickly by sending its Defence Minister Wei Fenghe on November 29, two days after Shringla concluded his Nepal visit. But before Wei’s visit, a Chinese team also was in Kathmandu and had met with Oli, Dahal, Home Minister Ram Bahadur Thapa, and Sher Bahadur Deuba, president of the Nepali Congress.

According to sources, Gyawali’s visit was earlier proposed by India for mid-December. But the Foreign Ministry could not respond as infighting was growing in the ruling Nepal Communist Party.

But now with the dissolution of the House, fault lines in the ruling party have become clear.

The agenda of the meeting is not yet clear but since the Oli government has been reduced to caretaker status after the dissolution of the House, officials could not provide details on the possible negotiations or agreements with India.

Apart from the recent boundary issues, there are some other outstanding matters that Nepal and India are yet to resolve.

India has yet to receive the report of the Eminent Persons’ Group even though the group finalised the report in July 2018.

There are also questions whether a caretaker government can take major decisions or take part in major meetings such as the joint commission where crucial issues, including boundary disputes, the EPG report and other bilateral issues are expected to be discussed.

Bipin Adhikari, former dean of Kathmandu University School of Law, said anything that can impact or influence the outcomes of the elections can’t be discussed or agreed upon when the government itself has been reduced to a caretaker status.

“Regular meetings or planned periodic meetings can be held, but no major policy decisions should be taken since the current government in Nepal is a caretaker one,” Adhikari told the Post. “This government cannot pursue new issues. Only a politically mandated government can do that. Meetings can happen but ministers and officials should be careful as elections have been announced.”

As there is no House, the caretaker Oli government is constrained in its functioning by convention, as its actions are not—and cannot be held—accountable by Parliament.

As a caretaker one, the Oli government has legal, but not political, legitimacy.

The Nepali Congress, which was the primary opposition until the House was dissolved, has also expressed its concern about the planned meeting with India, saying no major decisions should be taken when elections have been announced.

“Since it has turned into a caretaker government does not mean that the Oli government should not hold meetings with neighbours, but it should not take any major decisions,” said Prakash Sharan Mahat, a Nepali Congress leader and former foreign minister.

Mahat had led the Nepali delegation to the fourth joint commission meeting held in October 2016 in New Delhi.

Gyawali, however, refused to admit that the Oli government is a caretaker one.

“But even if that is so, who says a caretaker government cannot hold meetings? Does the government not continue to function if elections are declared?” said Gyawali. “This government works with full authority. No state can be a government-less state.”

A Chinese delegation reportedly held talks with Nepali Prime Minister Khadga Prasad Sharma Oli and President Bidya Devi Bhandari in Kathmandu on Sunday in a first diplomatic step by the neighbouring power after the prime minister dissolved parliament a week ago.

The four-member delegation led by Guo Yezhou, a vice minister in the international department of the Communist Party of China, arrived in Kathmandu on Sunday to assess the political situation following the rift in the governing Nepal Communist Party (NCP).

China has poured millions of dollars into Nepal in recent years in aid and infrastructure investment as it incorporates the country in President Xi Jinping’s Belt and Road Initiative project.

In the past few years, many Nepali communist leaders have visited China for “training programmes” amid growing engagements between the NCP and the Chinese Communist Party.

Sandwiched between China and India, politics in Nepal is also influenced by the priorities of its giant neighbours. India has been pushing back against Beijing’s growing clout in a country that New Delhi considers its own backyard.

Prime Minister Oli decided to dissolve the country’s parliament last Sunday and called for parliamentary election more than a year ahead of the schedule following a power struggle in the NCP. He had led an alliance with former Maoist rebels to a landslide victory in 2017.

The move triggered deep political unrest and street protests in the Himalayan nation as it grapples with the COVID-19 pandemic and left the ruling party on the verge of a split.

“I think the Chinese have come to assess the overall situation after the dissolution of parliament and virtual break-up of the Nepal Communist Party,” said Narayan Khadka, a senior leader of the opposition Nepali Congress party.

The Chinese Embassy in Nepal was not immediately available for comment.

Violation of the constitution

Earlier, Bishnu Rijal, a central committee member of the NCP, said the Chinese official was expected to meet Oli and his opponents.

Oli has said that internal squabbling and a lack of cooperation from his party paralysed decision-making, forcing him to seek a fresh popular mandate, but opponents say he rushed with the decision before exhausting all the options.

On Friday hundreds of protesters including three former prime ministers sat on a road near Oli’s office against his sudden move. They say Oli had no power to dissolve parliament and that he had violated the constitution.
“We’ll organise stronger protests against this dissolution by an unrestrained prime minister,” said Pushpa Kamal Dahal or Prachanda, one former prime minister.

Oli has rejected their demands and pledged to press ahead with parliamentary elections next year, on April 30 and May 10.

The prime minister has lost support within his ruling party this year, with some senior members accusing him of sidelining them in decision making and key appointments, and calling for him to step down.

Nepal’s 2015 charter does not give the prime minister the prerogative to dissolve the parliament without exhausting alternatives, constitutional expert Bipin Adhikari said.

“It is unconstitutional at the first sight,” he said.

The Supreme Court is hearing more than a dozen petitions challenging the dissolution of parliament and calling of early elections. It has given the government until January 3 to provide reasons for the dissolution, said the Supreme Court spokesman Bhadrakali Pokharel.