Nepal | October 23, 2020

Can House panel cross-examine SC verdicts?

No, say legal experts as unwarranted interference in judicial process will erode judicial independence

Himalayan News Service
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Kathmandu, September 6

Can parliamentary committees cross-examine verdicts issued by the Supreme Court? Lawmakers are asking this question as a section of the civil society has expressed reservation over the apex court verdict that makes it mandatory for the tax office to re-evaluate the capital gains tax imposed on Ncell’s buyout deal.

To end the confusion, parliamentary Law, Justice and Human Rights Committee today decided to discuss the issue with constitutional and other experts.

The House panel’s latest decision comes at a time when legal experts are saying inappropriate or unwarranted interference in the judicial process will erode judicial independence.

This is the first time a parliamentary committee is holding a discussion on the matter as judicial decisions have never been scrutinised by the legislative branch in the past.

Some lawmakers want to re-examine the court decision as they say the Supreme Court ruling of August 26 has reduced the outstanding tax liability on Ncell buyout deal to Rs 14.5 billion from Rs 39.06 billion determined by the Large Taxpayers’ Office. This, they say, have inflicted losses on the state.

A grand full bench of the SC had delivered its verdict stating the LTO had overstated the tax liability as interest and fines were added to the tax amount from before February 6. On February 6, the Supreme Court observed that capital gains tax on Ncell buyout deal should be paid by Ncell and not TeliaSonera, which sold its stakes in Ncell to Axiata Investment UK. The apex court wants the tax office to take this date as a reference to determine the tax amount.

Lawmakers of the Law, Justice and Human Rights Committee had met last week and expressed concern about this issue.

At that time, opposition Nepali Congress lawmaker Sanjay Kumar Gautam had asked whether the panel had the authority to re-examine the verdict, as “there was some scepticism”. But ruling Nepal Communist Party (NCP) Chief Whip Dev Gurung opposed, stating, “Nothing should be discussed without going through the full text of the verdict.”

Today, committee Chair Krishna Bhakta Pokharel said it would be inappropriate to examine the court’s verdict without holding discussion with constitutional and other experts. “The panel should first discuss this issue with experts unofficially before proceeding ahead,” he said.

It is not known whether the parliamentary panel will be able to discuss this issue as legal experts are against it.

Senior Advocate Purna Man Shakya said the panel should not take up this issue, as it was “against the principle of checks and balance”.

“If the Parliament and its panels find evidence of corruption against any judge, lawmakers are free to impeach the judge, but they cannot question Supreme Court’s verdict,” he said. “The Parliament is not a body to hear appeals against the SC. Also, the attorney general should advise the parliamentary panel not to re-examine SC’s verdict in Ncell’s case.”

Constitutional expert Bhimarjun Acharya echoed Shakya and said the Judicial Council was the authorised body to launch investigation against judges and take disciplinary action.

Article 128 of the constitution states that all must abide by any interpretation of the constitution or a law made, or any legal principle laid down, by the Supreme Court in the course of trying a lawsuit. The article also states that the Supreme Court, in accordance with law, can initiate proceedings and impose punishment for contempt if anyone creates obstruction in the dispensation of justice or disregards any order or judgment handed down by it or any of its subordinate courts.

“The verdict on Ncell’s tax issue was passed by a five-member full bench and could not be subject to judicial review. Hence, the parliamentary body should not question the verdict,” said senior advocate Mithilesh Kumar Singh.

A version of this article appears in print on September 07, 2019 of The Himalayan Times.

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