Supreme Court moved against controversial ordinance

KATHMANDU, DECEMBER 16

Three separate writ petitions were filed by lawyers Dinesh Tripathi, Om Prakash Aryal and Kanchan Krishna Neupane in the Supreme Court today challenging the new ordinance that amended the two key provisions of the Constitutional Council Act related to quorum and council decisions.

As per the new ordinance, Constitutional Council can now hold its meeting even if three members of the council, including the chairperson, are present in the meeting and it can take decision on the basis of majority. Earlier, the Constitutional Council was bound to take decisions only on the basis of consensus.

Aryal has named Prime Minister, Council of Ministers, President’s Office, members of the Constitutional Council, including chief justice, speaker and National Assembly chair and leader of the opposition defendants.

Aryal stated that the issuance of ordinance was a fraud on the constitution and if the ordinance was not repealed it could lead to constitutional disasters.

Aryal argued in his writ petition that the PM, president and the Council of Ministers violated the basic principles of constitutionalism, constitutional checks and balances, good governance, impartiality, transparency and accountability by abruptly amending the Constitutional Council Act.

Advocate Om Prakash Aryal filed the writ against the ordinance seeking to amend the act’s provision to only allow the Constitutional Council to conduct its meeting when majority members of the Council are present.

The petitioner argued that the way the government issued the ordinance by abruptly ending the budget session of the Parliament and evading Parliament was an illegal and undemocratic act.

“Although the president could issue an ordinance, constitutionalism had, however, set the limit for issuing an ordinance. But the failure of the president and the PM to understand this limitation was an indication of threat to the constitutional system,” said Aryal. “These defendants issued the ordinance in a hurry as if a national crisis would ensue if the ordinance was not issued immediately,” Aryal stated in the petition.

He said the PM who had lost moral power to rule the country had issued the ordinance to extend his power resorting to totalitarian and authoritarian modes. “If a person who faces moral crisis tries to victimise the constitution, then such an act is tantamount to sedition,” the petitioner argued.

He said the PM brought the ordinance with the motive of appointing his favourites in the constitutional bodies and to capture those bodies.

Aryal said the amendment brought about through the ordinance to the Constitutional Council Act would demolish the basic principles of the constitution and hence it indirectly amended the constitution itself.

The petitioner has asked the court to repeal the new ordinance.

He also urged the court not to attend the meeting of the Constitutional Council as per the provisions of the new ordinance and not to take any decision on the basis of the new ordinance until the final verdict was passed by the court. Tripathi also made similar arguments and urged the court to repeal the ordinance and stay any appointment made by the Constitutional Council.

These three petitions have been listed for hearing in the constitutional bench of the Supreme Court on Friday.

Nepali Congress lawmaker Radhe Shyam Adhikari, who is also a senior advocate, told THT that the chief justice, who is a member of the Constitutional Council, should not attend the meetings of the Constitutional Council now because he also sits on the constitutional bench of the Supreme Court that will have to deliver verdicts on the writ petitions being filed, thereby challenging the new ordinance.