KATHMANDU, Dec 7: The office of the president on Thursday shelved an ordinance, which was aimed at skipping parliamentary hearing for appointment of Supreme Court justices, forwarded by the government saying it needs further study before approval.
Earlier, a cabinet meeting held in Singha Durbar had decided to forward an ordinance to the president for amendment to the Judicial Council Act, 2047 so that temporary justices, who have already undergone parliamentary hearings, would continue to hold office without facing parliamentary hearings.
"The issue is sub-judice in the court and it is also necessary to determine the constitutional status of the ordinance," the president´s press advisor Rajendra Dahal told Republica.
Following the decision of the office of the president to shelve the ordinance, the Supreme Court (SC) will remain with six permanent justices, including the chief justice and a temporary justice, as the two year term of temporary justices Baidyanath Upadhyaya, Tarka Raj Bhatta, Gyanendra Bahadur Karki, Bharat Bahadur Karki and Kamal Narayan Das expired on Thursday.
The term of Justice Prakash Wasti will expire on January 21 while Justice Bharat Raj Uprety has already resigned last week.
When asked about possibility of allowing the five justices to continue to hold office, Spokesperson for the Judicial Council Jeewan Hari Adhikari said, "They may be given allowed to hold office, if the ordinance is approved."
However, constitutional experts and lawyers were divided over legitimacy of the ordinance. "How can we bring an amendment to the constitution through ordinance when we cannot amend even the ordinary laws through ordinance," said constitutional expert Bhimarjun Acharya. He stated that the problem could be resolved only by invoking Article 158 of the interim constitution.
Talking to Republica, senior lawyer Harihar Dahal said, "The temporary justices can be allowed to hold the same post as they have been already faced parliamentary hearing once. But there should be consensus among the parties for their appointment to permanent posts," he added.
Minister for Cooperatives and Poverty Alleviation Eknath Dhakal maintained that the government decided to forward the ordinance to avert possible vacuum in the apex court.
The Judicial Council has recommended skipping parliamentary hearings against its earlier stance on the issue. Earlier, responding to SC in writing, JC had stated that temporary judges cannot be appointed without parliamentary hearings.
A joint bench of SC on Sunday was divided over whether or not to extend the term of temporary justices or give them permanent posts without parliamentary hearings. The joint bench of Justices Ram Kumar Prasad Shah and Girishchandra Lal had forwarded the case to full bench for final verdict.
It is not clear if the office of the president would approve the ordinance immediately as it has already put on hold four ordinances and rejected another two.