A bench of Justice Shrikant Poudel issued an interim order on 4th Jestha, calling for discussion on a writ petition filed by Deepak Dhami, President of ANNFSU.
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The Supreme Court has issued a short-term interim order to stay the implementation of two government decisions to dissolve trade unions and ban student organizations. The majority of the Constitutional Bench issued an order on Monday not to implement the decision to dissolve the employee trade union and the single bench to ban the student organization.
The government had decided to dissolve the employee union through an ordinance. Civil Servants Organization President Bhavani Dahal had also filed a writ petition in the Constitutional Bench against the decision. The first hearing on the writ petition was scheduled for presentation in a bench of Acting Chief Justice Sapana Pradhan Malla, Justices Kumar Regmi, Hari Prasad Phuyal, Binod Sharma and Sharanga Subedi.
The majority of judges have decided to issue an interim order, which has been upheld. With this, the implementation of the government's decision has been suspended. There was a difference of opinion in the bench on the issue of issuing an interim order. Acting Chief Justice Malla, Regmi and Phuyal were of the opinion that an interim order should be issued, while Justices Sharma and Subedi had a different opinion. Since the majority of the judges decided to issue an interim order, it has been upheld. With this, the implementation of the government's decision has been stayed.
'It is seen that the Ordinance to amend certain Nepal Acts as urgently required pursuant to Article 114 of the Constitution of Nepal, 2083, during the time when the Parliament was summoned and adjourned, amended Section 10 of Section 2 of Section 2, 2049, Clauses (h1) and (2), Section 52, Section 53, and also removed Section 73A,' the order states, 'Originally, the restrictive clause of Section 52 of the Civil Service Act, 2049, which existed before the amendment by that Ordinance, ensured the representation of civil servants by official trade unions, and Section 53 makes provisions regarding trade unions of civil servants.'
The Supreme Court has ordered that both parties be called for discussion on 6 Jestha, stating that the right to trade unions is granted by the Constitution itself, and that it would be desirable to call both parties for discussion in the dispute and decide whether or not to issue an interim order.
‘It has been observed that the petitioner and learned legal practitioners have argued that the right to form an association under Clause (2) (d) of Article 17 of the Constitution and the right to form a trade union, participate in it and bargain collectively under Clause (3) of Article 34 are linked to the constitutional guarantee,’ the order states. ‘Considering the above context, a short-term interim order has been issued in the name of the respondents not to implement Section 10 of the Ordinance to Amend Certain Nepal Acts, 2083.’
Judges Sharma and Subedi, who held different opinions, have said that there will be no irreparable harm if the interim order is not issued. 'Looking at the said ordinance, it is desirable to amend various acts immediately and since there is no session of the Federal Parliament at present, it appears that the ordinance has been issued by the President on the recommendation of the Council of Ministers in accordance with Article 114(1) of the Constitution of Nepal to amend and supplement 20 other various acts in addition to the said act,' the dissenting opinion states.
'Thus, according to Article 114 of the Constitution, the ordinance issued by the President on the recommendation of the Council of Ministers is valid as an act and the process of whether the ordinance is submitted to the Federal Parliament and accepted by the Parliament is still pending, and since it is a matter of judicial knowledge that the session of the Federal Parliament has been called by the President since 28 Baisakh, there is no immediate irreparable harm to the writ petitioner,' the dissenting opinion states.
A bench of Justice Shrikant Poudel issued the interim order after calling for discussion on a writ petition filed by Deepak Dhami, president of the Nepal National Federation of Nepal Workers’ Union, on 4 Jestha. The Balendra Shah-led government had simultaneously dissolved 12 employee trade unions under the ‘Ordinance to Amend Certain Nepal Acts’. The unions whose registrations were revoked included the Nepal Civil Employees Organization, the Nepal Civil Employees Union, and the Nepal National Civil Employees Organization. These trade unions were close to the UML, the Congress, and the former Maoists, respectively.
Similarly, the registration of the Nepal Madhesi Civil Employees Forum, Nepal Health Workers Association, Madhesi Health Workers Forum Nepal, Unified Government Employees Organization, and Independent National Service Employees Organization Nepal was also revoked. The registration of four other national-level trade unions registered under the Nepal Health Service Act was also revoked.
These trade unions included the Nepal Health Workers Union, Health Workers Union Nepal, National Health Workers Association Nepal, and National Progressive Health Workers Organization. The same ordinance also dissolved the Parliament Secretariat trade union. Section 73 of the Federal Parliament Secretariat Act, 2064 BS, contained provisions regarding employee unions.
Why should the constitutional bench not issue the order as demanded by the petitioner? It has also asked the petitioner to submit a written reply through the Attorney General's Office within 7 days, excluding the deadline, stating the grounds and reasons as per the law for not issuing the order. Similarly, the single bench of the Supreme Court has also issued a short-term interim order, staying the implementation of the decision to ban student organizations.
The bench of Justice Shrikant Poudel issued the interim order after calling for discussion on 4th Jestha on a writ petition filed by Deepak Dhami, President of ANNFSU.
Stating that the decision to ban student organizations was taken away on 13th and 20th Chaitra, a writ petition was filed in the Supreme Court claiming that the decision took away the constitutional right to join an organization based on ideas. The order states, "The files related to the decisions made by the opposition on 13 and 20 Chaitra will be forwarded through the Attorney General's Office and a notice of presentation will be given." "A short-term interim order has been issued not to implement the two points "A" and "B" of the University Coordination Committee on 20 Chaitra until that date." Now, until the decision is made, students at the university will be able to carry out organizational activities without any hindrance.
