Chief Justice (CJ) Cholendra Shumsher Rana has said he will not attend the final hearing on the ordinance related to the Constitutional Council.
Petitioner Om Prakash Aryal told Setopati that CJ Rana called him to the bench and informed so. "The bench first stood up after hearing arguments. Honorable CJ came alone after some time. He called me and said he will be absent during the first and final hearings. This is what he said," Aryal stated. "The administration may give the details about this or we will know after the order."
The constitutional bench including CJ Rana and Justices Deepak Kumar Karki, Meera Khadka, Hari Krishna Karki and Ishwore Khatiwada started hearing on the petitions against the ordinance registered nine months ago from Friday.
Petitioners had pointed that CJ Rana, who is named as a defendant in the case, hearing the case is against the principles of natural justice and added there is conflict of interest as he was involved in appointments made after the ordinance was issued.
Advocate Aryal even claimed that CJ Rana got people close to him appointed in some of the constitutional bodies leading to CJ Rana protesting that he merely worked in the appointment process as per his constitutional duty and urged Aryal to not say that he shared the spoils in appointments.
"I have stayed here in this petition only because there is provision requiring the CJ to sit in the constitutional bench. You all don't just create problems and also give solution," CJ Rana told Aryal.
Aryal then suggested an alternative referring to Article 129 (6) of the Constitution. "If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of her/his office due to any reason or she/he cannot be present in office due to a leave of absence, or her/his being outside of Nepal, the senior-most Judge of the Supreme Court shall act as the Acting Chief Justice," states the Article 129(6).
He pointed that the senior-most justice can chair the constitutional bench in capacity of Acting CJ and conduct the hearing.
CJ Rana then suggested that issues related to constitutional disputes can also be heard by normal bench apart from the constitutional bench as per a previous SC order. Senior advocate Dinesh Tripathi, who has filed a separate petition against the ordinance, then suggested that the petitions can be sent to another bench as pointed by CJ Rana.
Arguing after Tripathi senior advocate Shambhu Thapa demanded an interim order to stop appointments made as per the ordinance and subsequent actions pointing that the ordinance related to Constitutional Council is against the spirit of Constitution.
Speaking after hearing the arguments Justice Khatiwada said that the provision requiring mandatory presence of the CJ in the constitutional bench has created problem. "Article 138 has made presence of CJ and four justices in the constitutional bench mandatory. It cannot be seen going outside our established norms as well. We will, therefore, look for some legal measures on this," Khatiwada stated.
The justices then stood up and left but Aryal and a few advocates were still in the bench. Aryal said that CJ Rana returned in a while and informed he will not stay in the first and final hearing on the petitions against the ordinance.
Officials recommended for different constitutional bodies were sworn in on February 3 without parliamentary hearing. The Constitutional Council after then prime minister (PM) KP Sharma Oli dissolved the House on December 20, 2020 had announced that all the vacancies in constitutional bodies were filled before the House dissolution
A writ petition was already filed with the SC demanding that newly-appointed officials of constitutional bodies be stopped from working.
The Constitutional Council meeting on December 15 had decided to fill the vacancies. The meeting held hours after Oli unilaterally brought the ordinance with a provision that allows decision in the Constitutional Council with support of the majority of the existing members had recommended to fill all the vacant constitutional positions.
Only PM Oli, CJ Rana and National Assembly Chairman Ganesh Prasad Timalsina had attended the meeting with Speaker Agni Sapkota and the then main opposition leader Sher Bahadur Deuba boycotting the meeting. The six-strong Constitutional Council only had five members then with the post of deputy speaker remaining vacant since resignation of the then deputy speaker Shiva Maya Tumbahangphe before election of Sapkota as speaker.
The decision was not made public immediately and revealed only after the House dissolution.
