KATHMANDU, March 3: The Supreme Court on Tuesday referred the writ petition on army recruitment to a larger bench after a bench comprising Justices Balram KC and Abdesh Kumar Yadav could not agree on this issue that has stirred deep political controversy.[break]
Now the petition will be presented before a full bench comprising three or more judges depending on how the chief justice constitutes the bench. The court is yet to work out the date for hearings before the full bench which will decide whether to stay the recruitment of 3,010 personnel by the Nepali army.
“We tried our best to pass a unanimous order but could not. So we have resorted to a democratic exercise as we have different opinions on issuing the stay order,” said Justice KC, who opinioned that the court should not stay the recruitment that had already been completed before the case landed in court.
“The recruitment should be stayed as it harms the Comprehensive Peace Agreement,” said Justice Yadav in his opinion differing from Justice KC´s. “The stay order can be reviewed after the defendants -- the government and the army -- file their written replies.”
This is the first time in the history of the judiciary that judges on a division bench have become divided over whether to stay recruitment till the case is finalized by the court. “We have done what was never done before,” said Justice KC before reading out his opinion in the court chamber.
The justices conducted hearings on the writ petition filed by INHURED International, an NGO, on Sunday and Tuesday. The bench was supposed to decide whether to continue the January-22 order staying the recruitment process till March 1. The order was passed by a single bench..
The NGO argued in its petition that the recruitment by the army violated the Comprehensive Peace Agreement (CPA) signed by the then government and the Communist Party of Nepal (Maoist) in November 2006. The agreement ended the 10-year Maoist armed conflict that claimed over 15,000 lives.
Justice KC said in his opinion that the court should seek the help of two senior advocates from Nepal Bar Association as amicus curie on key questions concerning the case. The questions are: 1. Whether the CPA annex in the Interim Constitution 2007 is part of the constitution. 2. Whether the recruitment by the army is “additional” as mentioned in the CPA. The CPA prohibits recruitment by the army and the Maoist’s People’s Liberation Army. 3. Whether the issue of recruitment falls solely under the jurisdiction of the Joint Monitoring Coordinating Committee (JMCC), a body headed by a UN representative as provisioned in the CPA.
In the meantime, the divided opinions of Justices KC and Yadav have led to confusion whether the January-22 stay order effective till March 1 would continue in force or stand nullified following Tuesday’s decision.
“The January-22 interim order is now ineffective as it was effective till March 1,” argued advocate Dr Bhimarjun Acharya who pleaded on behalf of he Nepal army. “The court had not pronounced that the January-22 interim order would continue till another court order.”
However, advocate Govinda Bandi, who pleaded on behalf of INHURED International, said that the January-22 stay order would continue even after Tuesday’s divided opinion of the justices.
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