APPOINTMENTS TO CONSTITUTIONAL BODIES
The constitution does not prevent retired judges from filing a case in the court
KATHMANDU, SEPTEMBER 13
Retired justice of Supreme Court Balaram KC today moved the Supreme Court seeking his role as an intervenor in the case filed by Advocate Ganesh Regmi against the Supreme Court in which single bench of Justice Hari Prasad Phuyal has issued an interim order staying the hearing of the case challenging appointments to constitutional bodies.
As a result of this stay order, the constitutional bench has halted the hearing of the case filed by Senior Advocate Dinesh Tripathi and Advocate Om Prakash Aryal challenging the appointments made by the KP Sharma Oli-led government to constitutional bodies bypassing parliamentary hearing.
Regmi has challenged Chief Justice Cholendra Shumsher JB Rana's decision to recuse himself from the case. Petitioners had argued that since Rana had attended the Constitutional Council that recommended appointments to constitutional bodies he had conflict of interest and should recuse himself from the case.
In the petition that he filed through his attorney, KC said Advocate Regmi had sought to restrict former judges from making comments on the sub judice case which was against the law.
He also stated in his petition that he had been freely exercising his freedom of opinion and expression guaranteed under Article 17 (2) (a) of the constitution which could be restricted only after making a new law invoking the restrictive clause of the same article.
KC said Article 135 prohibited former judges only from appearing in a court to plead on behalf of a litigant or from working as mediator or facilitator.
He, however, said that retired judges had the right to enjoy all fundamental rights and the human rights guaranteed by international treaties which Nepal was party to. KC said the constitution had not prevented retired judges from filing a case in the court. He said he wanted to join the case proceedings as his freedom of opinion and expression, which was a precious right, would be affected due to the stay order issued by single bench of Justice Phuyal. KC also argued that Regmi's petition should be quashed by the apex court.
"Curtailing freedom of opinion and expression, except in a case where the law permits it, is unthinkable in a democracy and a country which is a member of UN Human Rights Council, a party to ICCPR and a country which has judicial independence,"
KC argued. He said instead of the petitioner seeking to enumerate the unenumerated rights, he had filed the petition for the opposite purpose. Article 46 gives wider locus standi but not for curtailing freedom of opinion and expression of former judges. It is strange for the petitioner to demand that the chief justice, who was not supposed to preside over a particular case, should hear the case. "Such a petition should not have been registered.
We had a case of politicisation of judiciary in the process of appointment to constitutional bodies." KC added that if a directive was issued as per the demand of Regmi, then that could lead to judicial interference in politics.
KC said if the directive was issued in the Regmi case, that would be a judicial scandal. The petitioner has not given any reason for restricting former judges from expressing their views. "Why has the single bench issued interim order even when the petitioner has not given any reason for restricting judges from making comments?"
According to former justice KC, the court administration told his attorney to bring the petition on September 23 which will be listed for hearing the same day along with Regmi's case.
Meanwhile, Advocate Om Prakash Aryal also filed a supplementary petition at the Supreme Court demanding to quash the interim order passed by Justice Phuyal and to start hearing of his case sub judice in the constitutional bench.
A version of this article appears in the print on September 14 2021, of The Himalayan Times.