June Analysis: Governance


Delays caused by disagreements on composition of constitutional bench created to hear 30 petitions against the May 21 House dissolution

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The Constitutional Bench is hearing 30 petitions against the May 21 House dissolution.Arguments were occurring against the composition of the Constitutional Bench created to review these petitions. The petitioners’ lawyers and justices argued over the composition of the bench and whether it will provide impartiality. The presence of Justice Bam Bahadur Shrestha’s and Tej Bahadur KC on the bench was questioned.

Petitioners against the House dissolution move had demanded to constitute a full bench with 11 Supreme Court justices, however, Chief Justice Cholendra Shumsher Rana rejected this demand since disagreements over the composition of the bench and the impartiality of Justices Tej Bahadur KC and Bam Kumar Shrestha was causing the bench’s processes to be delayed.

The association of lawyers in the Supreme Court of Nepal suggested that Chief Justice Cholendra Shumsher Rana should reconstitute the bench by designating new justices based on their seniority.

However, Bam Kumar Shrestha and Tej Bahadur KC refused to recuse whereas Ananda Mohan Bhattarai and Deepak Kumar Karki left the bench. Thus, Chief Justice Cholendra Shumsher Rana, decided to constitute the bench based on seniority to include Deepak Kumar Karki, Mira Khadka, Ishwor Khatiwada, and Ananda Mohan Bhattarai.

After Chief Justice Cholendra Shumsher Rana reconstituted the bench on a seniority basis,  KP Oli’s lawyers demanded that two justices be expelled because they seem to have taken an impartial position, further stating that the current House dissolution is connected to the verdict that took place on March 7.

Prime Minister KP Sharma Oli presented an 18-point response which stated that formation of the government is a political process and so the supreme court should not be able to carry this out. Oli formulated this response after the constitutional bench demanded one about his decision to dissolve the house of representatives on May 21.

Furthermore, House of Representatives speaker Agni Sapkota had called an all-party meeting for June 18 in order to discuss the House dissolution which occurred on May 21 and the situation it has created in Nepali politics. Invitees include former prime ministers, the current prime minister and CPN-UML chairman KP Sharma Oli.

However, after the constitutional bench’s composition disagreements were migitaged, the bench began scrutinizing Article 76(5) and its interpretation. Article 76 (5) states that in cases where the prime minister appointed under clause (3) fails to obtain a vote of confidence under clause (4) and any member under clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as Prime Minister.

In conclusion, the processes of the constitutional bench to hear 30 petitions against the May 21 House dissolution were being significantly delayed because of disagreements about the impartiality of the members on the bench, but now the processes are finally  being put into effect. PM KP Oli and his defending side have argued their perspective with their 18-point response. The bench started analyzing Article 76(5) and its interpretation. However, the final results and verdict from the bench are yet to be decided.

KP Sharma Oli’s ministerial appointments challenged by court. President Bhandari’s legally questionable constitutional appointments supported by Oli’s ordinance.

KP Sharma Oli, currently the caretaker prime minister, had inducted ministers to the cabinet. On June 10, Oli appointed one state minister and seven ministers. However, the supreme court, on June 22, cancelled two of KP Sharma Oli’s cabinet expansions and induction of 17 ministers.

As a result of the supreme court’s invalidation of these two cabinet expansions, 20 ministers were relieved of their responsibilities. In response to this move, Chief Justice Cholendra Shumsher Rana and Justice Prakash Kumar Dhungana said that after the house was dissolved, it was unconstitutional to carry out cabinet expansions as per Article 77(3), which states that if a prime minister fails to win a vote of confidence or resigns, the same council of ministers will continue until another is constituted.

The names and ministries which were initially designated to these appointees by KP Oli, but later cancelled by the supreme court, are listed below: Ministry of Home – Khagaraj Adhikari, Communication and Information Technology – Nayankala Thapa, Industry, Commerce and Supplies – Rajkishwor Yadhav, General Administration – Ganesh Kumar Pahadi, Ministry of Agriculture and Livestock Development – Jwala Kumari Sah, and State minister for forest – Asha Bishwokarma.

In a related affair, on June 24, President Bidya Devi Bhandari had appointed 20 chairs and members in 11 different constitutional commissions without waiting for the constitutionally mandatory parliamentary hearing process to occur. KP Sharma Oli had assisted this move by issuing an ordinance on May 4, amending the Constitutional Council Act (Functions, Duties and Procedures) 2010 and allowing a majority of the five-member council to hold meetings.

In conclusion, it is not the first time KP Oli has ignored constitutional laws in order to carry out actions, in this case, appointing ministers to his cabinet without a vote of confidence. In addition, KP Oli’s introduction of an ordinance on May 4 allowing President Bidya Devi Bhandari to appoint chairs and members to constitutional commissions without waiting for the hearing process shows that KP Oli does not hesitate to modify constitutional provisions to suit his or his supporters’ actions, and it is not the first time Oli has done so.

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