The SC administration on Monday declined to register a writ petition submitted by Advocate Om Prakash Aryal, stating that the petition lacked due process. [break]
“The writ petition could not be filed at the court as it failed to meet the required process for public interest litigation (PIL) as per an SC order regarding such matters,” SC Spokesperson Shreekant Poudel told Republica.
SC Registrar Lohit Chandra Shah ordered the SC administration to return the writ petition to the petitioner, stating that the apex court will take a decision regarding the issue only when the petitioner moves the court after completing processes in keeping with the earlier SC order.
A special bench of Justices Kalyan Shrestha, Girish Chandra Lal and Sushila Karki on December 20, 2012 had ordered that a PIL petitioner should file an application before the authority or institution concerned to get them to address his/her issue prior to filing any writ petition, and if the issue is not addressed, the petitioner should come up with evidence thereof and inform them about the writ petition move.
Talking to Republica, General Secretary of Nepal Bar Association (NBA) Sunil Pokhrel termed the move a ´serious matter´. “Justice seekers must not be barred from getting justice by making PILs take a long time,” he maintained.
The SC took about seven hours to respond to the writ petitioner. “Though I submitted the writ petition at the SC at 10 a.m., the court administration told me only around 5 p.m. that it cannot be registered,” said Aryal.
Aryal has urged the apex court to annul the CC recommendation on appointing Karki, stating that the decision is prima facie against the Interim Constitution, existing laws, the spirit of the people´s movement and an earlier order of the SC.
A division bench of Justices Lal and Tarka Raj Bhatta had stated on April 29 that there cannot be any dispute that a recommendation by the CC for appointment to a post should be as per Article 119 (5) of the Interim Constitution and Clause 5 of the Constitutional Council (Functions, Duties, Powers and Procedures) Act, 2066.
According to Article 119 (5) (e) of the Interim Constitution, a person will not be eligible to be appointed as chief commissioner or commissioner unless he/she has a sound moral character.
Similarly, as per Clause 5 of the Constitutional Council (Functions, Duties, Powers and Procedures) Act, 2066, the council shall, while recommending a person for appointment to any constitutional body, set out the qualifications as mentioned in the Constitution and prevailing laws, and the reasons and grounds for the recommendation.
Likewise, the council shall, while recommending a person pursuant to Sub-section (1), shall consider matters including his/her social prestige, sound moral character, honesty, the public´s attitude toward him/her and his/her previous service, if any, and professional experience.
The writ petitioner has also argued that Karki is not competent for the post as he lacks the required experience of 20 years. Aryal has maintained that the CC move is also against the 11-point agreement which states that the Interim Election Council, which has been formed only to hold fresh polls, will not take any decision that will have long-term impact.
The writ petitioner has urged the SC to issue an order that no individual who is found to be involved in suppressing a mass movement or in human rights violation, will be eligible to hold a public post in future.
The president´s office, Chairman of the Interim Election Council Khil Raj Regmi, the CC, the CIAA and Karki himself are named as defendents in the writ petition.
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