Court yet to hear case on constitutional body picks

The Supreme Court is yet to initiate hearing on the writ petition against the controversial appointments to constitutional bodies around three months since the candidates were recommended, raising questions about the intention of the court, petitioners and legal experts have said.

On December 15 last year, a meeting of the Constitutional Council, based on a controversial ordinance, recommended dozens of names for appointment to 11 constitutional bodies including the Commission for Investigation of Abuse of Authority and the Election Commission.

Despite at least three petitions being registered against the constitutionality of the ordinance and the appointments made on its basis, Chief Justice Cholendra Shumsher Rana not only attended the meeting that recommended the names but also administered the oath to the appointees.

Chief Justice Rana on February 3 administered the oath of office to 32 individuals who were appointed even without parliamentary hearing, a statutory requirement for appointments to constitutional bodies.

Advocate Om Prakash Aryal, one of the writ petitioners, has listed the chief justice among the defendants. Two other writ petitions have been registered at the court against the ordinance and the appointment process.

The Supreme Court not hearing the case in which the chief justice himself is a defendant even for a single time has raised questions about its intention, legal experts said.

Bipin Adhikari, former dean at Kathmandu University School of Law, told the Post that the chief justice should have facilitated an early hearing on the case given that questions have been raised about himself from different quarters after he joined in recommending the names and swearing in those appointed in a controversial arrangement.

“Many people are questioning if the court's continued delay in the case is politically motivated. The case should be heard even to show that the court is independent,” said Adhikari. “The court’s continued delay raises questions if the chief justice does not want to be tried.”

Many commentators termed the Supreme Court’s February 23 verdict to reinstate the House of Representatives controversially dissolved by President Bidya Bhandari following recommendations by the KP Sharma Oli Cabinet as bold and held this as evidence that the country’s court remains outside the influence of the executive.

“The trust earned by the Supreme Court after this verdict could be eroded if the court continues to delay hearing on the controversial decision of the Constitutional Council whose constitutionality has been challenged,” said Adhikari.

Like House dissolution, this case too needs to be heard by the constitutional bench, which is led by the chief justice. Many legal experts have questioned whether the chief justice chairing the constitutional bench in this case would be against the principle of natural justice. As per the principle, party to a dispute cannot sit on a bench that is tasked with delivering justice.

“Ever since the constitutional bench on February 23 issued a verdict to reinstate the dissolved House of Representatives, no meeting of the constitutional bench has taken place,” said Samrit Kharel, one of the petitioners against the appointment process. “Even though the court has been incorporating the case in its cause list every Friday since it delivered its verdict to reinstate the House, no hearing has been initiated.”

Advocate Aryal said the case was not heard even though the Supreme Court incorporated the petition in the cause list 13 times since it was registered on December 16 last year.

After the petitions were filed at the Supreme Court challenging the council’s recommendations, the petitions were sent to the Constitutional Bench to test the constitutional validity of the recommendations.

The chief justice is responsible for conducting hearing but no effort has been made so far towards that end. “This has raised questions if the chief justice is obstructing justice,” said Aryal.

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

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

The ordinance introduced a provision that the quorum to hold a meeting would be enough if three of the members including the chairperson or prime minister were present and a majority of those in attendance could take a decision.

Following that, even in the absence of the opposition leader and the Speaker, the council meeting represented by the prime minister, the chief justice and the National Assembly chairperson made the recommendations.

The selection of candidates came in such a way that they could be appointed without getting through parliamentary hearing. The House was dissolved soon after the council meeting.

Article 292 of the constitution provisions parliamentary hearing of judges to be appointed by the Judicial Council and those to be appointed to constitutional bodies by the Constitutional Council.

With the President dissolving the House, the parliamentary hearing committee also ceased to exist. The government, however, went ahead with the appointments, saying that 45 days had passed since the recommendations reached the Parliament Secretariat.

Rule 26 (2) of the Joint Parliamentary Meeting Regulation of the federal parliament says there will be no obstruction for the recommended people to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the Council’s letter. The appointments were made before the court reinstated the House and all those appointed were spared parliamentary hearing.

Laxman Lal Karna, who headed the hearing committee, told the Post in early February that the rule was misinterpreted to make the appointments.

“The 45-day period stands only if the hearing committee had started its process and failed to complete the hearing,” Karna had told the Post.