Senior advocates Chandrakant Gyawali, Shambhu Thapa, Bhimarjun Acharya, advocates Mohana Ansari, Srihari Aryal, Raju Chapagarain and others argued on Wednesday, the next session on 6 March.
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In the debate against the controversial appointment of 52 officers of the constitutional body through an ordinance bypassing the parliament, advocates have advocated the jurisprudence that any decision made by the executive outside the framework of the constitution and democracy is subject to judicial review and should be corrected by the court.
Senior advocate Shambhu Thapa, debating on the second hearing of the writs against the disputed appointment on Wednesday, said, "The ordinance brought by the then Prime Minister to determine the quorum of the Constitutional Council in order to make it easier and stronger for him and to be able to decide on the recommendation if there is a majority in his presence is against parliamentary recognition and constitutional values."
The Constitutional Council chaired by KP Sharma Oli recommended 52 people for appointment to various constitutional commissions, 32 in November 2077 and 20 in April 2078. Both times the Constitutional Council Act was amended through an ordinance. Senior advocate Thapa has argued in the bench that if the ordinance is recognized, democracy will end. He insisted that the Constitutional Council and its appointments should be declared illegal from the beginning as it is clearly mentioned in Article 284 of the Constitution and therefore it cannot be amended by bringing an ordinance.
Thapa told the bench that as the leader of the parliament, the prime minister has the right to bring ordinances on some important matters, but there are conditions and limits. "After the dissolution of the Parliament, the Prime Minister cannot remain the leader of the Parliament and he does not have the right to make laws," he said.
Another senior advocate Bhimarjun Acharya also insisted that the Supreme Court should quash the unconstitutional appointment in the constitutional body. He argued that even though there is provision in Article 114 of the Constitution that the government can issue ordinances, the court has the right to check its intention or malice. Acharya said, "If the Prime Minister has issued an ordinance to fulfill his political objectives, it is invalid, even if he has brought an ordinance to weaken the Parliament, it cannot be valid." Acharya said, "Since both elements are found in that ordinance, it cannot be constitutional." He argued that since four years have passed since the appointment of the controversial ordinance, canceling the work done during this period will create another void. He held the opinion that the court should cancel the appointment without canceling the performance.
Ordinance made a legal provision that if 5 of the total 6 members of the Constitutional Council are present, it will be considered a quorum, if the majority of members including the chairman are present, the meeting can be held, and the majority of members including the chairman can take decisions. Accordingly, in the meeting of the Constitutional Council, then the leader of the main opposition party, Sher Bahadur Deuba and Speaker Agni Sapkota, boycotted the meeting, but Prime Minister KP Sharma Oli, who is also the chairman of the Constitutional
Council, the then Chief Justice Cholendra Shamsher Jabara and the then Speaker of the National Assembly, Ganesh Prasad Timilsina, held a meeting and recommended the appointment to the Constitutional Commission.
Both times, the House of Representatives was dissolved within days of the recommendation, so no parliamentary hearings took place. The then President Bidya Devi Bhandari appointed 32 people to various constitutional commissions on 21 January 2077 and 20 people on 10 June 2078, based on the parliamentary rules that 'no parliamentary hearing is held within 45 days of the recommendation'. 15 writs were filed in the Supreme Court from 1 January 2077 to 10 July 2079 demanding the cancellation of the constitutional council ordinance and cancellation of appointments. Hearing on those writs started on Jan 30 in the Constitutional Bench.
In the earlier hearing, when senior advocate Chandrakant Gyawali was starting the argument, the constitutional bench put it on the list of 'watching' after the office hours were over. Then, in the debate on Wednesday, senior advocate Gyawali took the first hour on the side that had to be said in the previous debate. "Bringing ordinances repeatedly on the same subject is an unconstitutional step in itself," he said in the court, "dissolving the parliament and relying on the regulations to make constitutional appointments cannot be considered legitimate under any circumstances." Another lawyer, Mohana Ansari, said, "The quorum cannot be amended to amend the constitution, and an ordinance cannot be issued to fulfill the ambition of the executive."
Before being appointed to the Human Rights Commission, Surya Dhungel's statement in an interview with the media that it was wrong to pass the ordinance by bypassing the parliament, and the joint statement issued by the international community saying that the ordinance is unconstitutional and that it should be corrected by the Supreme Court, were submitted by the bench as evidence. Senior advocate Srihari Aryal, advocate Raju Chapagarin, Pundevi Maharjan and others argued and argued that the ordinance was unconstitutional and should be repealed. While the debate on the writ is ongoing, the Supreme Court has said that the next payee is 'waiting' for the 6th of Chait.
