Acting Chief Justice Sapana Pradhan Malla ordered the filing of a petition against the order to file a writ petition against the Chief Justice's recommendation, but the Supreme Court administration did not comply.
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The Supreme Court administration has disobeyed the order of Acting Chief Justice Sapna Pradhan Malla to register a petition against the order to file a writ petition against the recommendation of the Chief Justice. Malla ordered to register the petition on Monday, but the Supreme Court administration did not comply.
The Constitutional Council had recommended Supreme Court Justice Manoj Sharma as the Chief Justice, breaking the tradition of recommending based on seniority. Senior advocate Dinesh Tripathi and advocate Premraj Silwal filed a writ petition against the council's decision on April 25, but the Supreme Court administration refused to register it.
Later, on the same day, senior advocate Tripathi and advocate Silwal filed a petition against the bench. After the Supreme Court administration put that petition on hold, the dispute reached Acting Chief Justice Malla on Monday. The writ petition has not been sent to the bench for a week. Taking their complaints into account, Malla had issued a three-page order to register the petitions by 1 pm on Monday and to schedule a hearing on Tuesday. Disobeying the order, the Supreme Court administration has not registered the petitions even by Monday evening.
When Kantipur tried to get information about this, Supreme Court Chief Registrar Bimal Poudel did not respond. He suggested that information be obtained from the Supreme Court spokesperson and information officer. When Kantipur tried to get information about this, Supreme Court Chief Registrar Bimal Poudel did not respond. He suggested that information be obtained from the Supreme Court spokesperson and information officer. Supreme Court spokesperson Arjun Koirala said that he was not in the office on Monday and that the writs had not been registered by Monday evening.
Rule 10 of the Supreme Court Rules provides that the petitioner can directly take the petition that the court has refused to register to the bench. The rules state that ‘A person who is dissatisfied with the order of the Chief Registrar or Registrar (not to register) may file an application to the bench within seven days.’
Petitioner Silwal said that he had reached the acting Chief Justice after the petition was not submitted to the bench for seven days.
On Monday morning, Acting Chief Justice Malla had asked the judges who were busy drawing lots for the daily case list why the order sent by the administration to Chief Registrar Poudel was not presented to the bench.
The bench began immediately after drawing lots and Malla had given the order on the petition registered in the secretariat. When Malla started writing the order, Chief Registrar Poudel left the Supreme Court. Kantipur tried to get a response from Sharma, who was recommended for the post of Chief Justice, but he did not come in contact.
After the government brought the ordinance related to the Constitutional Council, the Constitutional Council, which met on 24 Baisakh, had recommended Sharma, who is in the fourth position, as the future Chief Justice of the Supreme Court. The deadline set by the Parliament Hearing Committee inviting complaints from the public against Sharma expired on Monday. The committee is preparing to investigate and hear the complaint on Tuesday. For that, a meeting has been held since Tuesday morning. Even before Sharma's recommendation, advocates Silwal and Geeta Thapa had filed a writ petition against the ordinance on April 23. The administration has also kept the writ petition without registering it and without filing it with the bench.
Chief Registrar Poudel left the Supreme Court after Malla started writing the order. Kantipur tried to get a response from Sharma, who was recommended for the Chief Justice, but he did not come in contact. Acting Chief Justice Malla has mentioned in her order that the Supreme Court administration has taken the issue of not registering the writ petition on Sharma's order seriously. 'If the petition brought by the petitioner is not registered by the officer authorized to register it as per the law, it will not only obstruct access to justice, but it is also clear that the judicial process as per the law will also be violated,' Malla's order said. 'When the attention of the Chief Registrar was drawn to the attention of the entire court, he informed that the recommendation to the Chief Justice was not made because the judge (Manoj Kumar Sharma) himself had given the instructions.'
The order of the acting Chief Justice also made a comment that the registrar and the chief registrar who are looking into the case are trying to obstruct the judicial process. ‘When the chief registrar has the authority to register or challenge a document that is found to be unregisterable or unregisterable, the delay in registering or not registering the documents on the part of the petitioner on 23 and 25 Baisakh by the writ registration branch, the registrar who are looking into the case and the chief registrar are trying to confuse and obstruct the judicial process itself, it is a sign of indifference and inaction towards the integrity, impartiality, competence and independence of the judiciary,’ the order said.
As soon as Acting Chief Justice Malla issued this order, the writ petitioners took the petition to the Chief Registrar and Registrar Man Bahadur Karki, who was assigned the responsibility of registering the case. Chief Registrar Poudel had left the Supreme Court saying that he had a meeting. Registrar Karki had also left, saying that he would study for some time and should wait. The writ petitioners waited in court all day, expecting Karki to return, but they say that Karki had not been in touch.
After receiving information from the administration that not only the petition against the bench but also the order had not been complied with, the Acting Chief Justice held a discussion with the judges present in the Supreme Court. Judges Kumar Regmi, Hari Prasad Phuyal, Nahakul Subedi, Mahesh Sharma Poudel, Tek Prasad Dhungana, Bal Krishna Dhakal, Meghraj Pokharel and others had gathered in the discussion. After meeting with the judges for about half an hour, a delegation team from the Nepal Bar Association had reached there.
The Bar had expressed its concern to the Acting Chief Justice about how the government and other bodies would implement the order issued by the Acting Chief Justice of the Supreme Court if the Supreme Court administration did not implement it. According to a Bar official, in response, the Acting Chief Justice said that he had put his point through an order and that he was worried about where the judiciary would take it if any case came to court and someone started deciding whether to register it or not on someone's order, a participant in the meeting said.
She also mentioned that the order was made after studying the press release issued by the Nepal Bar on the judiciary. During the meeting, Bar President Bijay Kumar Mishra and General Secretary Kedar Koirala, among others, had commented that there were two courts. Saying that one was led by the current Acting Chief Justice and the other by the incoming Chief Justice, the Bar General Secretary Koirala said that they had suggested that they immediately convene a full court and make their official opinion public on the matter.
Former Supreme Court Justice Girish Chandra Lal said that it is very bad and embarrassing to hear such controversies. ‘The Supreme Court should not be involved in controversies at all. It is even more sad to hear such controversies and the orders of the Supreme Court judges not being implemented or being disobeyed. This is a bad thing,’ said Lal.
Former Supreme Court Justice Krishna Jung Rayamajhi said that new people have come to the government and the judiciary and that they should be given time and only then it would be appropriate to comment. ‘Those who have just come should be given time. In the past, judges would not have gone through party-based allocation of recommendations. That is what was done, now we are forced to suffer,’ he said.
Former Supreme Court Justice Krishna Jung Rayamajhi said that new people have come to the government and the judiciary and that they should be given time and only then it would be appropriate to comment. As the parliamentary hearing committee has set the agenda to open the complaint and start the discussion on Tuesday, there is a possibility that the date for the hearing of the Chief Justice will be fixed on Wednesday. If approved on the same day, President Ram Chandra Poudel will appoint Sharma and administer the oath. After that, Sharma will assume responsibility as the 33rd Chief Justice of the Supreme Court. After that, the ongoing dispute will go to Sharma's own court.
Earlier, Acting Chief Justice Malla could convene a full court on Tuesday to discuss the matter or transfer the case branch staff and bring in suitable staff to register and schedule the hearing. Advocate Silwal, one of the writ petitioners, said that since the petition was not registered on Monday, he will go to register it again on Tuesday. He said that he will go to the Supreme Court until it is resolved.
Failure to comply with the judge's order is an obstacle to the path of justice: Bar
After the day-long events, an emergency meeting of the Nepal Bar Association, the umbrella organization of legal practitioners, was held. The meeting stated that the Supreme Court administration's failure to comply with the judge's order is an obstacle to the path of justice. The Bar has said that keeping the petition filed before the Supreme Court without registering it without any reason is clearly beyond the authority of the administration and obstructing the path of justice.
‘For some time now, the Supreme Court administration has been returning the writ petitions filed before the Supreme Court on various issues of constitutional importance and even the petition filed thereon has not been registered for a long time, obstructing the path of justice.’ A statement issued by Bar General Secretary Kedar Koirala said, ‘It has come to our knowledge that the Acting Chief Justice has ordered the registration of the petition for conclusion by using Article 136 of the Constitution of Nepal, Section 35 of the Administration of Justice Act, 2073 BS, and Rules 7 and 8 of the Supreme Court Rules, 2074 BS, and the Supreme Court administration has also disobeyed it.’
Similarly, the administration's attitude of disobeying the orders of the acting Chief Justice, who bears the ultimate responsibility for the administration of justice, is not only extraordinary and unnatural, but it is also an incident that will be documented, a historical mistake that will not go into oblivion, and an incident that will attract the prevailing law, the Bar has commented. On Tuesday, the Bar has decided to 'protest the unexpected activities and actions of the administration of the Laltin Bali Court in the Bar premises and seek justice, conscience and a fair process.'
Similarly, the Bar has also expressed objection to the statement made by the Rashtriya Swayamsevak Sangh (RSS) MPs in the House of Representatives on Monday. 'The issue that was openly discussed in today's Parliament meeting, ignoring the provision in Article 105 of the Constitution that prohibits discussion of matters pending in the courts, is extremely regrettable,' the statement said.
