CJ appointment ‘unconstitutional’-Experts

Kathmandu, Aug 4-In the process of appointing the new CJ, Article 127 has come in handy once again. As per the constitution, the King with the recommendation of the Constitutional Council appoints the CJ. As per Article 117, the Prime Minister heads the Council, and the leader of the opposition in the House of Representative participates as a member. The King changed Article 117 invoking Article 127, and made the CJ the head of the Constitutional Council. The Council thus formed recommended Poudel as the new CJ, and the King appointed him. The constitutional experts are questioning whether invoking of an irrelevant Article could amend an Article of the same constitution. The amendment of an Article of the Constitution is considered as the amendment of the constitution, which can be done only by the two-thirds majority of the House of Representatives.
Legal experts including former Justice of the Supreme Court, Krishna Jung Rayamajhi, on Wednesday labelled the appointment of Chief Justice Dilip Kumar Paudel under Article 127 of the Constitution as unconstitutional.The experts’ reaction came after the Chief Justice Paudel himself claimed that neither his appointment was extra-onstitutional nor was it an amendment of the Constitution.
“It is absolutely against the spirit of the Constitution to appoint a Chief Justice by invoking Article 127,” said former judge Rayamajhi. “It was an unconstitutional assignment to the retired Chief Justice Hari Prasad Sharma to chair the meeting of the Constitutional Council. Properly, it was the purview of an elected PM,” he said.Rayamajhi was speaking at a programme on “Invocation of Article 127: Theory and Practice” organised by the Professional Skill Promotion Committee of Appellate Court Bar Association, Patan. He added that the invocation of Article 127 while sacking Sher Bahdur Deuba, appointing prime ministers and formation of the Royal Commission for Corruption Control was unconstitutional.
Law Minister of the interim government that drafted the 1990 Constitution, Nilambar Acharya, said that it was a fraud against the Constitution to invoke Article 127 while appointing a Chief Justice. He also said it was unconstitutional to use Article 127 without advice by the Prime Minister or by the cabinet.Former Law Minister, Subash Chandra Nembang, labelled the invocation as an amendment to the statute. Senior advocates Radheshyam Adhikary and Shreehari Aryal argued the King had invoked Article 127 against democracy and the spirit of the Constitution. “The use of Article 127 after October 4, 2004, is a taint,” they said.