A single-bench of SC Justice Baidhya Nath Upadhyay issued an order to this effect in response to a writ petition filed by lawmaker Badri Neupane of the Chure Bhawar Rastriya Ekta Party (CBREP). [break]
"Entry into the national army of a battalion representing a particular ethnic group without formulating appropriate law as prescribed by the Interim Constitution will be in contravention of the constitution," reads the order, adding, "The government decision to recruit 3,000 Madheis is inappropriate; so the bench hereby orders the authorities concerned to halt the process until the next decision of the court."
The bench said that the government decision to recruit Madhesis in the national army doesn´t square with provisions incorporated in Article 144 of the Interim Constitution.
"Any ethnicity-based induction into the national army is inappropriate, going by constitutional provisions and existing law," states the order.
Article 144 has a provision that say the NA will be inclusive and the government will give a national character to the national army while recruiting new human resources for it.
The same article says that Madhesis, indigenous people, ethnic communities, Dalits and women would be recruited in the NA through the formulation of appropriate law.
"Madhesis, Dalits, indigenous people and women would be recruited as per the principle of equality and inclusion, but only after formulating [necessary] law," the bench said, citing constitutional provisions in its order, adding, "However, the government decision to go beyond this provision and recruit a battalion contradicts the constitution."
As per constitutional provisions, various institutions including the Ministry of General Administration, NA and Nepal Police had amended their respective laws to ensure the inclusive induction of new human resources.
As per the amended regulations, 45 percent has currently been allocated for reservation quotas--Madhesis, Dalits, women, marginalized communities -- and 55 percent for open competition while recruiting new human resources for the civil service, NA, Nepal Police and other institutions.
The government has, however, taken a decision to recruit 3,000 Madhesis without amending the aforesaid regulations. The SC, in its order, has not said anything about when it will hold its next hearings on the matter.
On December 21, the government had endorsed a policy paper to make the national army more inclusive through the recruitment of 3,000 Madhesi youths, including women, indigenous folks, Dalits, Muslims and backward community members from across the Tarai region.
The decision came after the ruling alliance -- UCPN (Maoist) and United Democratic Madhesi Front (UDMF) -- agreed in principle to begin the process of recruiting Madhesi youths in the NA as per the four-point agreement signed between the Maoists and the Madhesi alliance on August 29.
A writ petition was filed at the SC, challenging the government decision to recruit 3,000 Madehsi youths en masse into the Nepal Army under a separate battalion.
The petitioner stated that any ethnicity-based induction into the national army is inappropriate, and demanded that the policy paper on the proposed recruitment be scrapped.
CBREP lawmaker Neupane had said in the writ petition that the cabinet decision allowing mass recruitment into the national army of people from one particular community curbs the constitutional right of people from other communities.
Stating that the cabinet decision can bring divisions in the national army and have serious ramifications for national security, the petitioner had demanded that the apex court issue a stay order against implementation of the decision.
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