The Supreme Court's decision on the Constitutional Organs Appointment case is not just incomplete, it is a step backward for constitutional justice in Nepal
Four years ago, then Prime Minister K.P. Sharma Oli issued an ordinance amending the Constitutional Council Act, citing non-cooperation and issues in convening council meetings. It lowered the quorum from six to three, enabling 32 appointments on December 15, 2020, and 20 later. Writ petitioners challenged these, arguing the ordinance violated Article 114, which limits ordinances to urgent cases when the Parliament is not in session, and bypassed Article 292's required parliamentary hearings. They sought to invalidate the appointments as unconstitutional.
The Constitutional Bench, comprising Chief Justice Prakashman Singh Raut, Justices Nahakul Subedi, Kumar Chudal, Manoj Kumar Sharma and Sapana Pradhan Malla, delivered a fragmented verdict that failed to produce a unified majority opinion. Justices Chudal and Sharma upheld the appointments and dismissed the writ petitions, arguing that the ordinance had been repealed, rendering it unnecessary to rule on its constitutionality. They also declined to address the absence of parliamentary hearings, citing the repeal of House Rules from 2074 B.S. that governed such processes. Justice Malla partially agreed but added that appointees must undergo parliamentary hearings within 45 days of the verdict, with the tenure counted from the original appointment date if found qualified. She emphasised that future appointments must be transparent, competitive and professional.
In contrast, Chief Justice Raut and Justice Subedi dissented, declaring the first round of appointments (December 15, 2020) invalid due to the failure to duly inform the Speaker of the House about the Constitutional Council meeting. They upheld the second round, citing compliance with procedural requirements. Notably, even the dissenting opinions did not fully engage with the core constitutional question of whether the ordinance itself was constitutional.
The petitioners' primary argument was that the ordinance amending the Constitutional Council Act was unconstitutional, as it misused Article 114 to serve political ends rather than address an urgent situation. The Constitution restricts ordinances to temporary measures when the Parliament is not in session, yet the court avoided examining whether the ordinance was a legitimate exercise of executive power. By focussing on the ordinance's repeal, the court ignored the fact that its consequences – 52 appointments – remained in effect. The "threshold principle" of constitutional law requires courts to prioritise constitutional questions, but the bench failed to test the ordinance's legality or the appointments' validity under the Constitution.
Article 292 of Nepal's Constitution mandates parliamentary hearings for appointments to constitutional organs, ensuring transparency and accountability. However, the ordinance and subsequent House Rules effectively bypassed this requirement, turning a mandatory constitutional provision into an optional one. This failure to uphold the Constitution's intent amounts to a de facto constitutional amendment through judicial inaction, undermining the separation of powers and checks and balances.
The verdict's reliance on the concept of "executive wisdom" and its refusal to scrutinise the ordinance's legality set a dangerous precedent. By validating appointments made under a repealed ordinance, the court implicitly permits future executives to issue ordinances, make appointments and later repeal the ordinances to evade accountability. This weakens the rule of law and emboldens executive overreach, as governments could manipulate constitutional processes without parliamentary scrutiny, especially during periods of parliamentary inactivity.
The lack of a majority opinion reflects the judiciary's inability to provide clear guidance on constitutional matters. The Chief Justice's minority position raises concerns about the judicial appointment process and the judiciary's coherence. Even the dissenting opinions failed to thoroughly analyse the ordinance's constitutionality or the structural role of constitutional bodies. Justice Malla's apology for the delay in delivering the verdict, while unusual, distracts from the core issue and signals systemic judicial weakness. A court's authority lies in its judgments, not in apologies, and this verdict lacks the robust constitutional reasoning expected from a Constitutional Bench. The verdict weakens the doctrine of separation of powers and the role of the Parliamentary Hearing Committee.
Though summary in nature, the verdict was a missed chance to set a guiding precedent and protect citizens' rights through robust constitutional interpretation. Instead, the verdict leaves critical questions unresolved, increasing the risk of repeated executive overreach. The court's failure to address the ordinance's constitutionality weakens the judiciary's credibility and diminishes its role as a check on other branches of government.
Parliamentary hearings should not be made optional. The verdict's reliance on repealed House Rules rather than constitutional principles underscores the urgency of aligning parliamentary procedures with the Constitution's mandates.
The Supreme Court's decision on the Constitutional Organs Appointment case is not just incomplete, it is a step backward for constitutional justice in Nepal. The fragmented verdict, coupled with the Chief Justice's minority position and Justice Malla's apology, exposes systemic judicial weaknesses. This ruling empowers the executive to bypass constitutional safeguards, threatening the rule of law and the separation of powers. For Nepal's judiciary to regain its credibility, future verdicts must prioritise constitutional principles over procedural technicalities, ensuring that justice aligns with the spirit of the Constitution.
Pandey is an advocate
