The writ registered on the appointment of 52 officials in the 12 Constitutional Commissions has been finalized by the Supreme Court after four and a half years on Wednesday midnight, but it has not been able to demonstrate a long-term solution to the dispute. It is an irony in itself that the constitutional bench, which has held the case for four years and heard it 11 times in a row, took 48 days to pronounce its decision.

Even on the day of the final decision, the judges were expected to deliver a prophetic verdict with strong facts and arguments as they were engaged in homework for 14 consecutive hours from 10 am on Wednesday. The bench has ordered that the appointment of 52 people will be approved, but it has not been able to guide the process and criteria of appointment in the Constitutional Commission. In this way, the constitutional bench has missed an extraordinary opportunity to give a strong and clear message in favor of protecting the constitution by strengthening the principle of separation of powers and balance of power. Five judges have given three types of opinions which make the society more confused today than yesterday in the view of the main issue. 

Based on the ordinance introduced by the then government, the recommended persons were appointed without parliamentary hearing. The court had to address the wider constitutional context regarding the practice of changing the law and recommending it based on the ordinance and then dissolving the House of Representatives and blocking the hearing process and giving appointments automatically. However, the bench has presented a judgment based on the purely technical issues.

To what extent, the then Speaker Agni Prasad Sapkota, who filed a writ petition in the Supreme Court against the appointment of the Constitutional Council, is also written in the judgment as if his writ is dismissible on the basis that he is not currently a member of the Constitutional Council, but also on the basis of a change in circumstances. The simple fact that Sapkota went to the court not in his personal capacity but as the Speaker and ex-officio member of the Constitutional Council is also ignored. Similarly, 15 writs were filed in the Supreme Court regarding the appointment of 52 people twice. But the bench has only addressed the reference of the then Speaker. Other advocates feel that their constitutional concerns as citizens have been neglected.

2077 Prime Minister KP Sharma Oli, Chief Justice of the Supreme Court Cholendra Shamsher Jabra and Speaker of the National Assembly Ganesh Prasad Timilsina were present when the meeting of the Constitutional Council was called at 9 am on 30th November 2077. But since Speaker Sapkota and Leader of the Opposition Sher Bahadur Deuba were not present, the meeting was called at 5 pm as the quorum was not reached. Between morning and evening, an ordinance was issued by President Bidya Devi Bhandari based on the recommendation of the Council of Ministers. As the Ordinance stipulates that the presence of three persons is deemed to be a quorum, the Prime Minister, Chief Justice and Speaker of the National Assembly recommended the appointment. The then speaker went to the court saying that the evening meeting was called without informing him and the decision made there would be invalid.

. But Judges Kumar Chudal and Manoj Kumar Sharma have opined that the speaker was called in the morning meeting and the evening meeting was held as a continuation of the same and there is no need to give separate information for that. After the opinion of Judge Dwaya was supported by another judge Sapna Pradhan Malla, the same opinion became the decision of the Supreme Court based on the majority. Chief Justice Prakashmansingh Raut and Judge Nahkul Subedi have written an opinion that the morning meeting was held according to the then law and the evening meeting was held according to the ordinance ie the new law.

They have given the opinion that the evening meeting was held on the basis of different legal provisions and since the speaker did not get the formal information that the meeting would be held, the decision made by that meeting will be invalid. But the said opinion is in the minority and has been limited as a dissenting opinion. Even though the Constitutional Council decided in the same style in Baisakh, since the Speaker did not protest that he was not called, the five judges are unanimous that the appointment made on that day as 'Mounam Sammati Saksanam' will be automatically confirmed. 

The Supreme Court is of the view that it is the duty and right of the government to bring an ordinance when the Parliament is not in session. However, the constitutional bench did not try to look at the issues of issuing ordinances, recommending appointments to constitutional commissions, and ending the scope of hearings by dissolving the House of Representatives in the light of constitutional jurisprudence. Because the Prime Minister dissolved the House of Representatives on December 5 after bringing an ordinance for the first time on December 30 and recommending the appointment of 32 officials. Similarly, after bringing the same ordinance again and recommending the appointment of 20 officers on 26 Baisakh, the House of Representatives was dissolved on 7 May. In this way, when the constitutional bench ignores the responsibility of giving a comprehensive view on the issue of systematically disconnecting the constitutional and legal process, the risk of such a planned attack on the law has increased in the future. 

Due to the dissolution of the House of Representatives, the matter of the persons recommended being automatically appointed after 45 days was not addressed by the judge except for Sapna Pradhan Malla. Even now, he has written an opinion that a mandate will be issued to all office bearers to conduct a parliamentary hearing within 45 days, to take oath if approved, but also to count the tenure so far. Since he is in the minority on this matter, it has not received legal recognition. 

The purpose of the representation of the Prime Minister, Chief Justice, heads of both houses of Parliament and the leaders of the opposition parties in the Constitutional Council is to ensure balance of power. But if there is an attempt to unsettle the balance of power based on the ordinance brought by the executive, the intervention of the supreme court is expected. But the Supreme Court has not given any jurisprudential answer to this serious issue which has been legitimized by the recognition that the Ordinance is a weapon of deception by the executive. The example of the Supreme Court has encouraged the arbitrariness of the executive and narrowed the role of the judiciary.