Friday, July 29, 2005

CJ appointment controversy: Constitution 'amended' through executive order

Kathmandu july 29-For the first time in the 15-year history of the constitutional practice, the constitution of the kingdom of Nepal 1990 has been effectively `amended' through executive order while appointing Chief Justice of the Supreme Court, experts said.
A communiqué issued by the Press Secretariat of His Majesty said Friday that His Majesty King Gyanendra has issued an order, as per Article 127 of the constitution, specifying Chief Justice to chair the meeting of Constitutional Council (CC) in order to recommend a person for the post of Chief Justice. Chief Justice is one of the members of the CC.
The order had to be issued as His Majesty chairs the Council of Ministers and there is no Prime Minister in the country. Experts say this very situation has given rise to a 'grave constitutional crisis' as manifested in the appointment process of the Chief Justice of the country.
Article 117 of the constitution has made provision of the Constitutional Council (CC), which is headed by Prime Minister. Other members of the CC include Chief Justice of the Supreme Court, Speaker of the House of Representatives, chairman of the National Assembly, leader of the main opposition in the House of Representatives and Minister for Law, Justice and Parliamentary Affairs.
As positions of Prime Minister, chairman of the National Assembly and leader of the main opposition in the House of Representatives remain vacant, Speaker of the dissolved House Taranath Ranabhat and newly appointed Minister for Law, Justice and Parliamentary Affairs Niranjan Thapa took part in the meeting of the Constitutional Council Friday afternoon. Chief Justice Hari Prasad Sharma chaired the meeting a few hours before his tenure was due to expire.
Sources said the meeting of the CC has recommended the seniormost Justice at the apex court, Dilip Kumar Poudel, for the post of new Chief Justice of the country.
Experts say the act of `amending' the constitutional provision (in this case, the provision of Article 117) through an executive order is blatant violation of the letter and spirit of the present constitution.
"Nowhere in the world can a constitutional provision be amended by invoking another Article of the same constitution," said Bhimarjun Acharya, a constitutional lawyer. "There is certain procedure to amend the constitution which must be fulfilled while amending the fundamental law of the land," he added.
Article 116 of the constitution of the kingdom of Nepal says, the constitution can be amended (except those described as non-amendable) by the two-third majority of the House of Representatives only.
The House of Representatives remains dissolved for the last three years.
"It's not possible to amend the constitution by the executive or through an executive order," Acharya told Nepalnews.
In a landmark judgment in the much talked about Wadhwa vs State of Bihar case, the Supreme Court of India had said, "To change the provision of the constitution through an executive order and thereby violate its letter and spirit is fraud on the constitution."
So, what could have been done when there is no functioning parliament and prime minister elected by the parliament? There could have been two options, says Acharya. "One, to go for national referendum (on who should be the new CJ, for example) as practiced by some developed, democratic countries which would be a costly initiative for a country like Nepal. The second option could be to apply `Doctrine of Necessity' to recommend the seniormost Justice of the Supreme Court as the new CJ by the existing members of the CC (without changing its composition as prescribed by the constitution)," he opined.
Experts warn that amending a constitutional provision through an executive order could set bad precedent for the constitutional and democratic process in the country.
One of the main responsibilities of the Constitutional Council is to recommend chief official of the constitutional bodies including Public Service Commission, Commission for the Investigation of Abuse of Authority, Auditor General, Attorney General and the Election Commission.
The act of 'amending' the constitutionally prescribed provision of the Constitutional Council through an executive order could compromise the independence and neutrality of the existing constitutional bodies, experts warned.

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