In a state of confrontation
Nepal is in a state of confrontation.
Amid concerns over a political showdown between two factions of the Nepal Communist Party, key state agencies that define the separation of powers have been brought against each other. The genesis lies in Prime Minister KP Sharma Oli’s moves of introducing an ordinance on December 15 and dissolving the House of Representatives five days later.
In an unprecedented move, House Speaker Agni Sapkota on February 5 filed a writ petition against the chiefs of executive and the judiciary as well as the Office of the President.
As Speaker, Sapkota heads the legislature.
Sapkota has challenged the recommendations made by a meeting of the Constitutional Council. The meeting was held after Oli introduced an ordinance to revise some provisions regarding the summoning of the Council meeting and taking decisions.
The Speaker has argued that he was not informed (48 hours prior) for the meeting.
President Bidya Devi Bhandari on February 3 appointed the officials recommended by the December 15 Council meeting.
The appointments were made even as the Oli government’s move of introducing the ordinance was sub judice—not even a single hearing had been conducted.
Experts say the way things have unfolded over the last two months has risked the democratic process in the country. According to them, while Oli’s ordinance and House dissolution were wrong, the Speaker moving the court against the executive and judiciary are also unjustified.
The Speaker has made the prime minister and the chief justice defendants in the case, for the former heads the Council and the latter is a member. The Office of the President has been made defendant because it made the appointments to the constitutional bodies.
Bipin Adhikari, former dean of Kathmandu University School of Law, said that the extraordinary jurisdiction of the Supreme Court to file writ petitions or public interest litigations is reserved for common citizens, not those who hold an office of authority.
“Sapkota has filed the writ petition in the capacity of the Speaker, which is fundamentally wrong,” Adhikari told the Post. “The fight between the state agencies is not a good sign for democracy.”
While filing his case as a public interest litigation, Sapkota has presented his personal case as well, claiming that the appointment issue is a concern of the entire country and the people. After a first hearing on February 7, a single bench of Justice Prakash Dhungana has already issued a show cause notice to the defendants.
In his petition, Sapkota has claimed that he was deprived of the right to know about the [Constitutional Council] meeting and that the appointments need to be corrected for the larger public good.
As per the Supreme Court regulation, public interest litigations can be filed with regard to issues of larger public interest rather than individuals.
The Speaker’s petition is also flawed because he has ignored the fact that the Parliamentary Hearing Committee is a joint committee of the House of Representatives and the National Assembly, according to experts.
Sapkota in his writ has claimed that the appointments were made despite his decision to return the Council recommendations to the Secretariat of the Constitutional Council.
Earlier on January 31, Sapkota had returned the recommendations forwarded by the Council saying that there was no possibility of holding the hearing of the appointees as the House of Representatives did not exist. He, however, had not consulted with the chair of the National Assembly, who is also a member of the Council.
Analysts say Sapkota acted as if the hearing committee was under his prerogative. The 15-strong hearing committee had 12 members from the lower house and three members from the upper house.
National Assembly Chairman Ganesh Timilsina on February 1 had reacted to Sapkota’s move of sending back the Council recommendations claiming that he did not have the authority to make the decision unilaterally.
Adhikari, the former dean, said the Speaker is the presiding officer of the House of Representatives who holds no authority to decide on matters of the joint committee.
“However, he acted like an executive authority of Parliament as a whole,” said Adhikari.
The appointments were made on the basis of Rule 26 (2) of the Joint Parliamentary Meeting Regulation as 45 days had elapsed since the Council sent the recommendations to the Parliament Secretariat.
Rule 26 (2) of the Joint Parliamentary Meeting Regulation of the federal parliament says there would 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 letter from the Council.
Laxman Lal Karna, who headed the hearing committee, however, had told the Post that the 45-day period was not applicable in this case, as it applies only after the hearing starts. Since the House was dissolved the same day the recommendations were sent to the Parliament Secretariat, the hearing committee had already died, according to Karna.
But whether the recommendations and appointments were legal was to be tested by the court, as the December 15 Council meeting decision had already been challenged, Sapkota’s move of filing his own writ has muddled an already confusing issue.
Experts say that in a democracy, the power of the three state agencies is complementary and when they indulge in a tussle, democracy suffers.
According to them, as the head of one key organ of the state, Sapkota needed to play the role of a coordinator between the state agencies rather than challenging them.
Madhav Basnet, a senior advocate who specialises on constitutional law, said among the three state organs two—the executive and the legislature—are political institutions and the third—judiciary—is apolitical.
The Speaker, however, has dragged an apolitical institution into a political fight by filing the writ.
“The legislature and the judiciary have a similar position constitutionally, but now by filing the writ, the Speaker has surrendered before the Court,” Basnet told the Post. “What if the court rules against him? Won't it raise a moral question for him?”
The shadow of confrontation that is now engulfing the state agencies, however, emanates from the conflict in the Nepal Communist Party, particularly between Oli and Dahal.
After a weeks-long tug-of-war between Oli and Dahal over the Speaker's post, the latter had managed to extract a win in the third week of January, 2020.
The fight over the Speaker's post, however, was just the tip of the iceberg, as conflict had been growing in the Nepal Communist Party for some months.
Sapkota succeeded Krishna Bahadur Mahara, yet another former Maoist leader close to Dahal, who resigned following rape allegations against him. Oli had at least on a couple of occasions expressed his displeasure at Mahara for non-cooperation.
Ever since Sapkota assumed office, the Oli camp was suspicious.
Sapkota, however, presided over the House meetings barely for six months, as suspecting any untoward move against him, Oli on July 2 had prorogued the House.
Just as the Dahal-Nepal faction was up in arms over House dissolution, Sapkota too had made his position clear on Oli’s move.
There were allegations that Sapkota, despite being elected to the non-partisan post of Speaker, was acting at Dahal’s instructions, just as Timilsina, who also as the National Assembly chair, faces accusations of working at the behest of Oli.
Now chiefs of the two houses whose primary duty is to oversee the law-making process are also at odds.
Analysts say the country and the people expected political stability, strengthening of the constitution and empowering of state agencies after the 2017 elections, but Oli set in motion a chain of events, creating an environment of hostility among key state organs.
“Sapkota’s move of filing the writ petitions can have a profound impact on the democratic system that we were trying to strengthen,” said Basnet. “He should have let the court deal with the cases that were filed earlier, but by filing the case, he has made the legislature party to the conflict.”