KATHMANDU, SEPTEMBER 3

Senior Advocate Dinesh Tripathi, who had challenged the appointments made by the erstwhile KP Sharma Oli government in constitutional bodies bypassing parliamentary hearing, filed a writ petition at the Supreme Court today seeking repeal of a stay order passed by a single bench of Justice Hari Prasad Phuyal yesterday against hearing on the case related to appointments in constitutional bodies.

As a consequence of this interim order, hearing on the case scheduled for today could not take place.

The Supreme Court decided not to register Tripathi's petition saying he was not a party to the case in which Justice Phuyal issued an interim order yesterday, according to SC Spokesperson Baburam Dahal. Tripathi, said he would continue to make his case before the SC saying that he was a concerned party in the case as the order from the single bench had halted the hearing of his case.

Yesterday, a single bench of Justice Phuyal had issued the interim order in response to a writ petition filed by Advocate Ganesh Regmi against the Supreme Court and others arguing that Chief Justice Cholendra Shumsher JB Rana's recusal from the case related to appointments in constitutional bodies was not in accordance with the law, which stipulated that the chief justice should preside over the constitutional bench.

In the writ petition, Tripathi submitted at the SC, he had named Advocate Ganesh Regmi the defendant.

Tripathi and Advocate Om Prakash Aryal had challenged the appointments made in the constitutional bodies after the Oli government amended the Constitutional Council Act through ordinances. The Oli government had appointed 52 people - 32 people as per the first ordinance issued on December 15, and 20 people as per the second ordinance issued on May 4.

Tripathi stated in his petition that the stay order issued by the single bench of Justice Hari Prasad Phuyal was erroneous as he had passed the order without giving him a chance to present his arguments, which was a key principle of natural justice. He said the stay order had deprived him of justice.

Stating that an interim order could not be passed to halt a court hearing, Tripathi argued that the single bench did not have the power to issue an order against the constitutional bench in a manner that could adversely impact the hearing of the constitutional bench. 'Issuing interim orders in this manner can lead to deviation in the judiciary,' he argued.

Tripathi stated that the CJ's decision to recuse himself from the case should not be an issue of judicial review as recusal decision was purely a matter of his wisdom and conscience. He stated that the concept of one not being a judge in his/ her own case was a major principle of justice as it ensured fairness in the dispensation of justice.

'If there is a situation where a judge can be biased or if there is a conflict of interest, the concerned judge should recuse himself/herself,' Tripathi stated in his writ petition.

Tripathi quoted American Bar Association's model Code of Judicial Conduct, which stated that a judge should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned. A version of this article appears in the print on September 4 2021, of The Himalayan Times.