The Supreme Court has issued an interim order asking its constitutional bench not to conduct hearing on the case filed against appointments in constitutional bodies as per the ordinances issued by KP Sharma Oli amending the quorum-related provisions of the Constitutional Council Act.

A single bench of Justice Hari Prasad Phuyal 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 the constitutional bodies was not in accordance with the law that stipulated that the chief justice should preside over the constitutional bench.

The interim order was issued a day before the constitutional bench was about to hear the case related to appointments in constitutional bodies. The court also issued a show cause notice to the defendant.

Regmi's lawyer Bal Krishna Neupane told THT that his client argued before the court that if the chief justice should opt out of the case, the constitutional provision that required the CJ to preside over the constitutional bench must be amended.

Article 137 of the constitution stipulates that the constitutional bench shall comprise the CJ and four other judges designated by the chief justice on the recommendation of the Judicial Council.

The bench observed that the case related to appointments in constitutional bodies should be decided only after settling the question whether or not the CJ, who presides over the constitutional bench, can recuse himself from the case, whether or not the senior-most justice can preside over the constitutional bench and how the fair trial principle developed under common law system should apply in the context of Article 20 (Right to Justice) and 126 (courts to exercise power relating to justice).

The bench also observed that the constitutional case related to appointments in constitutional bodies should be decided only after settling the question of how the courts should consider the remarks of former justices, judges, and litigants' lawyers with regard to sub judice cases.

The bench also asked Nepal Bar Association and the Supreme Court Bar Association to provide two amici curiae to assist the court.

Advocate Om Prakash Aryal and Senior Advocate Dinesh Tripathi had challenged the appointments made in constitutional bodies through the ordinance that amended the Constitutional Council's rule lowering the quorum for holding Constitutional Council meetings and taking decisions. CJ Rana has also been named a defendant in the case. The Oli government had appointed 52 people - 32 people as per the first ordinance issued on December 15, and 20 as per the second ordinance issued on May 4 bypassing parliamentary hearing.

Rana had recused himself from the case after petitioners and their lawyers argued that Rana, who was part of the Constitutional Council meeting convened on the basis of the new ordinances, should take leave on the day as the case would be listed for final hearing. They said if Rana, a defendant in the case, presided over the bench in this case, that would be against the principle of natural justice, which holds that no person should be judge in his/her own case.

The ordinances enabled the Constitutional Council to achieve quorum with three members, including the chairperson, and to take a decision with the consent of just two members.

A version of this article appears in the print on September 3 2021, of The Himalayan Times.