KATHMANDU, March 8: The Judicial Council has been dismayed by Speaker Onsari Gharti sending back the recommendations it made for the appointment of justices for the Supreme Court
The Parliament Secretariat, as per the decision of the Speaker on Sunday, sent back the recommendations, arguing that the council itself is yet to get full shape in line with the spirit of the new constitution. The secretariat wrote to the council that Parliament could not conduct parliamentary hearings since the new parliamentary regulations had not yet been formulated in line with the new constitution."In the past, there was a wonderful practice within Parliament of the Speaker consulting the chief whips of the major parties and the minister for parliamentary affairs whenever such constitutional issues came up before Parliament," said Minister for Law, Justice and Parliamentary Affairs Agni Kharel.
"This time things could not happen that way and I only came to know through media that the Speaker sent back the recommendations made by the Judicial Council," added Minister Kharel, who is also a member of the council.
Minister Kharel said the Judicial Council will discuss the matter at its next meeting and put forward its formal decision.
It is said that Speaker Gharti made the move arguing that similar reasoning obtained as when the government withdrew the nomination of Ram Prasad Situala as a Judicial Council member. The Oli government had withdrawn the nomination of Sitaula, who was recommended as a council member by then prime minister Sushil Koirala, arguing that the Parliamentary Hearings Committee was dysfunctional in the absence of new parliamentary regulations.
"The Speaker decided to send back the recommendations forwarded to Parliament for hearings as it was not clear what could be done with it," said the Speaker's press advisor, Babin Sharma.
Lawyers have mixed reactions
While some advocates said that the Speaker's move was not unexpected, others said they felt irked.
"The spirit of the constitution seeks the institutional representation of Nepal Bar Association (NBA) in the decision making process of the Judicial Council. And in the absence of parliamentary regulations and a Parliamentary Hearings Committee, the move was not unexpected," said Sunil Pokharel, general secretary of NBA.
"The Nepal Bar is yet to recommend its representative on the Judicial Council and the understanding is that recommending a name has no meaning unless Parliament has the regulations and a hearings committee in place. The Speaker's move reiterates similar reasoning," Pokharel argued.
However, NBA Vice-Chairman Tikaram Bhattarai claimed that the Speaker's move was unconstitutional and amounted to an over-stepping of jurisdiction. "I don't know how the Speaker acquired the prerogative to send back the recommendations without first consulting the Business Advisory Committee of the House or the House itself," said Bhattarai.
"How did the Speaker know that the Judicial Council was incomplete? Since the same quorum at the Judicial Council has already formed the Constitutional Bench and the bench has been issuing verdicts, how could the Speaker say the council's recommendation is against the spirit of the constitution?" questioned Bhattarai.
Advocate Bhattarai questioned how Speaker Gharti could forget that the Judicial Council meeting, which she herself attended, had recommended Ayodhi Prasad Yadav as the chief election commissioner though she was aware that there were no new parliamentary regulations then either, nor a hearings committee.
The Judicial Council last week recommended Deepak Kumar Karki, Kedar Chalise, Sharada Prasad Ghimire, Mira Khadka, Hari Krishna Karki, Bishwambhar Prasad Shrestha, Ishwar Khatiwada, Aananda Mohan Bhattarai, Anil Kumar Sinha, Prakash Man Singh Raut and Sapana Pradhan Malla for appointment as Supreme Court justices. Among the recommended 11, Hari Krishna Karki, Sinha, Raut and Malla are senior advocates while the rest are career judges serving as chief judges at appellate courts.
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