• CASE AGAINST APPOINTMENTS TO CONSTITUTIONAL BODIES
KATHMANDU, JULY 31
No other bench can issue order against the constitutional bench
The constitutional bench of the Supreme Court has quashed the petition filed by Advocate Ganesh Regmi against Chief Justice Cholendra Shumser JB Rana's decision to recuse himself in the case filed against 52 appointments to the constitutional bodies, saying that the petition was aimed at creating obstruction in the case.
Releasing the full text of the verdict, the five-member constitutional bench led by Acting CJ Deepak Kumar Karki said there was no substantial reason for Regmi to file the PIL against the recusal. It also said that the constitutional bench was all powerful, no other bench could issue order against it, and there was no provision of appeal or judicial review against the verdict of the constitutional bench.
CJ Rana had decided to recuse himself from the case after it was argued that Rana, who took part in the Constitutional Council meeting as an ex-officio member, should not preside over the case as that would go against the principle of justice, as one should not be a judge in his own case.
Hearing the petition, a single bench of Justice Hari Prasad Phuyal issued an interim order against the Supreme Court and others on September 2 observing that CJ Rana's recusal from the case was not in accordance with the law that stipulated that the chief justice should preside over the constitutional bench. The single bench had also observed that the constitutional case related to appointments in constitutional bodies should be decided only after settling the question of how courts should consider remarks of former justices, judges, and litigants' lawyers with regard to sub judice cases.
Justice Ishwar Khatiwada stated in the verdict that constitutional bench was independent, competent, powerful, and not under any bench. "This bench is not bound to honour any bench or agency's order or instruction. The orders and verdicts passed by this bench are final," the court observed.
The bench said it was evident that Regmi filed this petition to serve somebody else's interests and to create complications in the judicial process "There is no ground to justify the relevance of Regmi's petition and order passed by the single bench in his case," the bench observed.
The bench said that allowing the Supreme Court to be a defendant in the case was not in consonance with judicial practice. "No one should make a judge's right to take leave an issue of public interest litigation. In case the CJ takes leave for any reason, the acting chief justice has the right to act as chief justice. In the six years of constitutional bench, the acting CJ has presided over the bench," the bench observed.
The bench said the petitioner, instead of working as a social engineer to contribute to judicial process, acted against it by challenging Rana's decision to recuse himself from the case.
The court said Article 46 of the constitution did not allow anybody to make recusal an issue of constitutional remedy.
"This can neither be termed a social action litigation nor a public interest litigation. If anything, it is a mysterious action litigation," the court observed.
"It is best to leave the matter of recusal to the concerned judges and the bench's discretionary power."
The bench observed that fair and impartial principles of justice inherent in the constitution and international law required the court to have non-committed judges. Since cases had been filed against Rana, accusing him of seeking spoils of appointment, and since Rana defended those appointments and administered the oath of office and secrecy to some appointees, deeming Rana a non-committed justice would be a matter of serious deviation. The bench also ordered the Nepal Bar Association and Supreme Court Bar to tell lawyers that they could face punishment in the future if they filed PIL on whims or to fulfil vested interests.
The petitioner had argued that the constitutional bench could not be formed without the chief justice and the principle of natural justice could not apply in this matter as laws stated that a constitutional bench should be formed under the chief justice where other four justices should be members of the bench.
Defendants had countered the petitioner's arguments saying that in accordance with Article 114 (2) the constitutional bench could be formed without the chief justice and in such a case the acting chief justice could chair the constitutional bench.
Defendants had argued that the writ petition had been filed to adversely impact the Nepal Bar Association's protest against the CJ and since the CJ was suspended after the impeachment motion was moved against him in the House of Representatives, there was no relevance of the petition. The bench had delivered the verdict on March 23, the full text of which was published on Friday.
A version of this article appears in the print on August 1, 2022, of The Himalayan Times.
