KATHMANDU, JUNE 13
Advocate Om Prakash Aryal today filed a writ petition in the Supreme Court challenging the Constitutional Council Act (Amendment) Ordinance issued on May 4, saying the government issued the ordinance evading the Parliament.
The petitioner said the ordinance was prima facie wrong as it allowed the government to make appointments in the constitutional bodies without any oversight.
The petitioner also urge the court to invalidate all the appointments made under the ordinance and to quash it by staying implementation of the ordinance till the final verdict.
He argued that the new ordinance attempted to render constitutional process and provisions ineffective and thus undermined constitutionalism, checks and balances, impartiality, accountability and transparency.
Aryal had challenged a similar ordinance that the government had issued earlier on 15 December 2020 and the case is still sub judice in the Supreme Court.
The government had first issued similar ordinance on 20 April2020 which was rescinded by the President on 24 April 2020 after opposition parties and leaders from Prime Minister KP Sharma Oli's own party opposed it.
As per Article 284 (1) of the constitution, the Constitutional Council has the PM as chairperson and chief justice, speaker, deputy speaker, chair of the National Assembly and leader of opposition as members of the body. The petitioner said that the ordinance reduced the quorum required for Constitutional Council meetings and the process of making decisions.
The petitioner argued that in the original Constitutional Council Act, attendance of four members of the Council, including the chairperson, was required to meet the quorum for meetings.
The petitioner stated that the new ordinance stipulated that the quorum would be deemed to have been met if majority of members were present in the meeting and decision could be taken on the basis of majority. This means three members of the Constitutional Council, including the PM can recommend appointment in constitutional bodies.
As the post of deputy speaker remains vacant, the attendance of three members, including the chairperson will suffice to meet the quorum, according to the ordinance. The petitioner said that although the main spirit of the Constitutional Council Act was that decisions should be taken on the basis of consensus, the ordinance provided for decisions on the basis of majority.
The petitioner said the ordinance not only reduced the quorum for the meeting, but also made the PM's vote mandatory for Constitutional Council decisions.
The ordinance stipulates that the appointments made under the previous ordnance should be deemed to have been made under this ordinance and that was a violation of Article 144 of the constitution. He said as per Article 93 and 144 of the constitution ordinances cannot remain in force for more than six months without endorsement of the House.
Advocate Aryal told THT that the Supreme Court heard the case filed against Citizenship Act (Amendment) Ordinance within seven days, but it had not heard the case he had filed against the Constitutional Council Act (Amendment) ordinance six months ago.
Aryal said that the earlier case was listed for hearing 17 times and yet not even a primary hearing was conducted by the apex court. He said he had reason to believe that his earlier case was not heard because of the Chief Justice's conflict of interests in the case. "While the argument in favour of citizenship Act Amendment ordinance may sound logical as it is necessary for eligible citizens, the argument in favour of Constitutional Council Act (Amendment) Ordinance may not sound logical because the positions that the government filled through this ordinance lay vacant for almost five years and there was no hurry to bypass the parliamentary hearing for the new appointments," he argued.
A version of this article appears in the print on June 14, 2021, of The Himalayan Times.
