Nepal | July 05, 2020

Lawyers differ on Speaker’s power to send letter to JC for review

Himalayan News Service
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Speaker Onsari Gharti Magar

Speaker Onsari Gharti Magar begins the Legislature Parliament meeting in Kathmandu on Thursday, February 11, 2016. Photo: RSS

Kathmandu, March 7

Lawyers have differing views about Speaker Onsari Gharti’s decision to inform the Judicial Council that the Parliament cannot act on the latter’s nomination of 11 Supreme Court justices.

Advocate Hari Phuyal said as per parliamentary practice and the constitution, the Speaker did not have power to return the JC’s letter without acting on it.

“The constitution gives the president power to return bills for reconsideration, but the Speaker does not have such power,” Phuyal argued.

He said if the Speaker decides not to act on the JC’s nomination of SC Justices on grounds that the JC does not have all five members including the chairperson, then the Speaker, who is a member of the Constitutional Council, should have refused to nominate Ayodhi Prasad Yadav as Chief Election Commissioner as the CC does not have the Chair of the Upper House as a member of the body now.

“As per the new constitution, the chair of the Upper House of the Parliament is also a member of the Constitutional Council and since this provision cannot be implemented at this stage, should we assume here cannot be a CC unless this body has the chair of the Upper house?” Phuyal wondered.

He said Yadav was nominated as Chief Election Commissioner in the absence of Parliamentary Hearing Committee and Parliamentary Regulations.

Phuyal said the Speaker’s decision could also fail the Chief Justice as the nomination of 11 SC Justices was taken by the JC headed by the Chief Justice.

Senior Advocate Shambhu Thapa also said the Speaker did not have power to question the nomination of JC. “But the validity of the JC’s nomination does not end just because another constitutional body does not act on the JC’s decision,” he said.

He added that the concerned bodies would now be interested in exploring alternative avenues to redress the situation created by the Speaker’s decision.

A former office bearer of Nepal Bar Association, however, said on condition of anonymity, that it was natural on the part of the Speaker not to act on the JC’s nomination, particularly in the absence of Parliamentary Hearing Committee and Parliamentary regulations.

Another Senior Advocate Bal Krishna Neupane said the issue there should be clear guidelines as to who could be nominated as Supreme Court Justices.

“We should not give an impression that the lawyers who are politically active are better than career judges,” he said.

A version of this article appears in print on March 08, 2016 of The Himalayan Times.

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