A special bench of Justices Girish Chandra Lal, Sushila Karki and Prakash Wasti scrapped a pre-stay order regarding the matter issued earlier by the apex court.
The justices in their order said it was not necessary to continue the court´s earlier pre-stay order as the SC can rule whether or not the existing provision on disqualification of a candidate applies once defendants furnish their arguments regarding the provision before the court in writing. [break]
The court ruled that Clause 19 (e) of the ordinance regarding election of members of the Constituent Assembly (CA) is in line with existing laws.
Clause 19 (e) states that anyone sentenced to life imprisonment or life with property attachment by a final verdict of the court will be disqualified from contesting elections.
Justices Lal, Karki and Wasti also maintained that the provision relating to disqualification of a candidate has not harmed any fundamental rights as the writ petition was filed as public interest litigation (PIL).
Though the writ petition has argued that Clause 19 (e) of the ordinance concerning election to the CA runs counter to Article 65 of the Interim Constitution, the court said it is clear that one can qualify to be a CA member only if one is not disqualified by any other existing law.
Article 65 of the Interim Constitution states, “In order for a person to become a member of the CA, such a person must possess the following qualifications: (a) be a citizen of Nepal; (b) have attained at least twenty-five years of age; (c) has not been convicted of a criminal offense involving moral turpitude; (d) is not disqualified by any law; and (e) does not hold any office of profit.”
Following the SC order, all murder convicts, including UCPN (Maoist) leader Bal Krishna Dhungel, will be unable to file candidacy for the upcoming CA election scheduled for November 19.
The SC back in 2001 had upheld an order of Okhaldhunga District Court and convicted Dhungel of murdering Ujjan Kumar Shrestha.
Talking to Republica, General Secretary of Nepal Bar Association Sunil Pokhrel said the SC´s order Thursday has strengthened the trust of those who have faith in the rule of law and an independent judiciary.
Earlier, pleading in court on behalf of the writ petitioner, former attorney general Mukti Pradhan said the provision was intended to curtail the fundamental rights of an individual, while advocate Ram Narayan Bidari claimed that those advocating the provision are anti-CA election.
Defending the provision, Joint-Attorney General Kiran Poudel stated that the provision is in line with existing law and the constitution and the government does not have any intension of disrupting the poll.
On Monday, a single bench of Justice Tarka Raj Bhatta had ordered the government and the Election Commission (EC) not to implement till Thursday Clause 19 (e) of the ordinance concerning election of CA members.
Justice Bhatta had summoned the writ petitioner and the defendants to court on Thursday for discussions on whether the SC should issue an interim order as demanded by the petitioner.
Advocate Bishwa Prakash Bhandari, who is also chairman of the Rastriya Manav Adhikar Sarokar Kendra [national human rights concern centre], had moved the apex court on September 19, urging the apexd court to scrap Clause 19 (e).
The writ petitioner has claimed that the provision was introduced with ill intention against a particular person and political party at a time when the peace process is yet to reach its logical conclusion.
Chairman of the Interim Election Council Khil Raj Regmi, his office and the EC, among others, have been named as defendants in the writ petition.
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