KATHMANDU, Jan 6: The Supreme Court (SC) directed the government to determine the order of precedence among various state organs in line with the principle of separation of powers. It issued this order after receiving a writ petition that highlighted discrepancies in the order of precedence published by the Ministry of Home Affairs (MoHA).
The Constitutional Bench, led by the then Chief Justice Bishwombhar Prasad Shrestha and Justices Sapana Pradhan Malla, Prakash Kumar Dhungana, Kumar Regmi, and Manoj Kumar Sharma, issued the order on June 26, and its full text has recently been made public.
The ruling states, "The government should determine the order of precedence for the Chief Justice and other justices of the SC, judges of the high and district courts, as well as former chief justices and justices and judges, according to the previous arrangement."
Discontent surfaces over new order of precedence
Advocate Nanibabu Khatri raised a question on the order of precedence for the justices of the Supreme Court, constitutional officials, and judges of the high and district courts by filing a writ petition.
On February 9, 2018, the MoHA published a notice regarding the order of precedence. The writ petitioner argued that the published order of precedence undermined the judiciary and constitutional positions. The petition also highlighted alterations in the previous order, which established lower ranks, and questioned the failure to determine the order of precedence for former justices and judges.
The ruling states, "The order of precedence established on February 23, 2023, November 25, 1969, December 23, 1975, April 20, 1987, and December 16, 1991, along with the provisions, spirit, and intent of the Constitution of Nepal, justifies determining the order of precedence for the Chief Justice, ministers, and justices of the SC immediately after the Prime Minister. The order for former prime ministers of Nepal should follow immediately, and the order for former chief justices of the SC and former ministers of Nepal should follow immediately after the order for former justices of the SC."
The ruling states, "Determine the order of precedence by considering the principle of separation of powers, independence, and dignity of the executive, judiciary, legislature, and constitutional bodies."
As the position of judges in all courts is constitutional, the order directs that the determination of the order of precedence must align with the spirit and dignity of the Constitution.
However, explaining that the executive holds the jurisdiction for determining the order of precedence, the SC had quashed the writ petition. The court considers determining the order of precedence for national personalities a highly sensitive and important task. The order states, "When making a decision, it is desirable to determine the order of precedence based on the hierarchical structure in accordance with the Constitution and the application of laws."
The SC explained that the order of precedence helps the state organs maintain respect, balance of power, and constitutional dignity. The ruling emphasized that the order of precedence plays a decisive role in establishing coordination, cooperation, and harmonious relationships. Therefore, the state must determine the order of precedence impartially, without any form of bias or prejudice, the SC said.
