Chief Justice Cholendra Shumsher JB Rana, who has been named a defendant in a case filed by Speaker Agni Prasad Sapkota, challenging the appointments to the constitutional bodies after the Constitutional Council Act was amended through an ordinance, submitted his written response to the Supreme Court.

Rana said since the nominations made by the Constitutional Council on December 15 were valid, the writ petition should be quashed. Rana refuted the speaker's argument about the Constitutional Council failing to achieve the quorum on December 15 when office bearers for the constitutional bodies were nominated, saying the Constitutional Council achieved the quorum for its meeting that day as the ordinance amending the Constitutional Council Act stipulated that the quorum would be achieved if majority of the existing office bearers (three out of five) were present. On December 15, the Constitutional Council meeting attended by the then prime minister KP Sharma Oli, Chair of the National Assembly Ganesh Prasad Timilsina, and Rana had made recommendations for appointment to constitutional bodies.

Rana said since three office bearers unanimously decided to recommend names for constitutional bodies, the decision was valid.

Section 6 of the Constitutional Council Act stipulated that a quorum for the Constitutional Council shall be met if the chairperson of the council (prime minister) and five other members of the council were present.

This provision was changed through the ordinance on December 15 that stipulated that quorum shall be met if majority members of the existing office bearers of the Constitutional Council, including the chairperson (PM), were present.

An ordinance is applicable as a law unless it is quashed by the court or rescinded by the president, CJ Rana said. He said that an ordinance ceases to be valid if rejected by the Parliament.

Sapkota had moved the SC demanding nullification of the appointments made to the constitutional bodies on December 15.

He had called the Constitutional Council ordinance unconstitutional and boycotted the swearing-in ceremony of the newly appointed office bearers, who were appointed without a parliamentary hearing, on February 3. On December 15, two office bearers - leader of Opposition Sher Bahadur Deuba and Sapkota - had boycotted the Constitutional Council meeting.

In an attempt to halt appointments to the constitutional bodies, Sapkota had then sent back the recommendations to the government, saying that hearing for the nominees could not be conducted as the House of Representatives was dissolved, but the Oli government went ahead with the appointment process and administered the oath of office and secrecy to the newly appointed constitutional office bearers.

Civil society members and lawyers had said that CJ Rana should have skipped the Constitutional Council meeting on December 15 to avoid 'conflict of interest' as it was clear that people would seek remedy from the Supreme Court against the government's move to amend the Constitutional Council Act through an ordinance.

A version of this article appears in the print on August 9 2021, of The Himalayan Times.