Chief Justice Cholendra Shumsher JB Rana has recused himself from the preliminary and final hearing on the case filed against appointments made by the KP Sharma Oli government in constitutional bodies bypassing parliamentary hearing.

Advocate Om Prakash Aryal and Senior Advocate Dinesh Tripathi had challenged the appointments made in constitutional bodies through ordinance that amended the Constitutional Council's rule lowering the quorum for holding Constitutional Council meeting and for 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 people as per the second ordinance issued on May 4.

Communication Expert of the Supreme Court Kishwor Paudel said CJ Rana had decided to take leave on the days the constitutional bench of the apex court would hold preliminary and final hearing on the case. The next hearing has been scheduled for Friday next week.

This means the cause list of the case will be prepared by senior most Justice of the SC Deepak Kumar Karki, who could be appointed acting chief justice in the absence of CJ Rana. Justice Karki could name another justice from the roster in the five-member constitutional bench.

Today, Advocate Aryal, senior advocates Shambhu Thapa and Dinesh Tripathi, pleaded on behalf of the petitioners saying CJ Rana should take leave on the day the case would be listed for final hearing.

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 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.

According to Aryal, before deciding to take leave on the day of hearing, CJ Rana had told the petitioners that he would concur with the verdicts of the four other Justices of the bench in the case, but the petitioners argued that if there was a tie in the Justices' opinions, then the case would have to be started again and that would be a time-consuming process.

The Justices then consulted among themselves and CJ Rana told the petitioners that he would take leave on the day the bench would conduct preliminary and final hearing.

The bench has also said that the constitutional bench must be presided over by the chief justice, to which the petitioners had argued saying that the CJ could go on leave and the senior most Justice could preside over the bench.

The Oli government first issued an ordinance amending the Constitutional Council Act on December 16 and issued a similar ordinance on May 4 to make appointments to constitutional bodies, including the National Human

Rights Commission and the Commission for the Investigation of Abuse of Authority.

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.

The Constitutional Council meeting that took the controversial decision on the basis of these ordinances, had only the prime minister, CJ Rana and National Assembly member Ganesh Prasad Timilsina.

Two other members - leader of the opposition party Sher Bahadur Deuba and Speaker Agni Prasad Sapkota had boycotted the meetings.

The deputy speaker is also a member of the Constitutional Council but this post has remained vacant for some time.

The petitioners have argued that appointments made through the ordinance bypassed parliamentary oversight and were thus against constitutionalism, constitutional good governance, balance of constitutional power and the preamble of the constitution.

They have urged the court to invalidate the ordinances and annul the appointments made in the constitutional bodies on the basis of the ordinances.

The petitioners have said that when the government first issued the ordinance on December 15, NA Chairperson Timilsina told media outlets that appointments had not been made, but the council sent the names of nominees for constitutional hearing minutes before the government dissolved the House of Representatives on December 20.

The petitioners have also argued that issuing the same ordinance with the motive of bypassing the Parliament is a fraud on the constitution.

Petitioner Tripathi argued that the Oli government's move lowering the quorum was against the spirit of Article 284 of the constitution that stipulated that there would be six people in the Constitutional Council - the PM, leader of Opposition, speaker, deputy speaker, chief justice, and chairperson of the National Assembly.

A version of this article appears in the print on August 28 2021, of The Himalayan Times.