Congress Leader Angdembe Expresses Written Disagreement on Chief Justice Appointment Recommendation

On Thursday, in the Constitutional Council meeting, Chief Opposition Party Nepali Congress leader Bhishma Raj Angdembe registered a written disagreement regarding the decision to recommend the appointment of the Chief Justice. He, who is also the parliamentary party leader of the Nepali Congress, lodged a 7-point written disagreement with the meeting's decision.

Rato Pati asked Angdembe why he registered a written disagreement when the recommendation for appointment was made in accordance with the constitution. Here is a summary of the conversation with him-

• Why did you register a 7-point written disagreement in Thursday's Constitutional Council meeting? What was the subject that required disagreement?

The disagreement was registered on the grounds that the proposal to recommend the appointment of the Chief Justice came against the spirit of the constitution. The constitution envisions a council chaired by the Prime Minister, with the Chief Justice, Speaker, Chairperson of the National Assembly, Deputy Speaker, and the Leader of the Opposition in the House of Representatives as ex-officio members, to allow for extensive discussion and debate. The purpose of this provision is to seek legal and political legitimacy. The aim is for everyone to take ownership of the decisions made by the council. Currently, that situation does not exist in the Constitutional Council. 

संवैधानिक परिषद्को बैठकमा कांग्रेस संसदीय दलका नेता आङ्देम्बेले राखेका थिए ७ बुँदे असहमति (पूर्णपाठ)

The government brought an ordinance that allowed decisions to be valid with the presence of 3 out of 6 members, and the chairperson's vote to count as 1 plus 1. The provision, under the guise of special arrangements, is not legally sound. We argued that a majority decision cannot be reached under this arrangement, as a single member's vote counting as 1 plus 1 is contrary to the constitution's intent. The Constitutional Council was envisioned to recommend constitutional appointments by consensus. However, this was not achieved. It appears the government's intention was to control constitutional bodies by bringing them under its purview, rather than allowing them to function independently in accordance with the constitution and democratic principles. We have registered our disagreements in writing on all these matters. The Supreme Court also issued a verdict on 2081/2/14 regarding this matter. According to that verdict and interpretation of the Supreme Court, this is incorrect. 

The Supreme Court's verdict states that a majority cannot be formed with 3 members in a 6-member Constitutional Council. We have also raised the question of whether the Supreme Court's interpretation should be followed by everyone. We have registered our written disagreement on this issue as well. In our written disagreement, we have stated that the head of government should not control constitutional bodies, and the government should not be able to alter constitutional bodies for its own interests to suppress oversight. The constitution was established with provisions for appointments and duties to prevent this. We conclude that the government brought the ordinance with the malicious intent of securing decisions in its favor, which is contrary to the spirit and intention of the constitution. 

 The decision of the Constitutional Council was made based on an incorrect ordinance that goes against the spirit of the constitution. It is not in accordance with the constitution's spirit. We have clearly registered our views in writing that the Nepali Congress disagrees with this ordinance and the decision made by the Constitutional Council based on it. 

The constitution stipulates that a judge who has completed 3 years as a permanent judge in the Supreme Court should be recommended for appointment as Chief Justice. The government also stated the same when clarifying the recommendation?

There is no disagreement with the provision in the constitution. We have not disagreed with his qualifications. However, among the qualified candidates, we believe that the tradition of 80 years of judicial history should be continued. We are saying not to deviate from that. The constitution recognizes the senior-most judge of the Supreme Court. Based on that, acting chief justices have also been appointed. The constitution recognizes them with all the rights of an incumbent Chief Justice. There is no reason to break that sequence now. 

If the process and tradition are broken in this manner, it will set a wrong precedent in the judiciary, and its shadow may fall on the appointment recommendations for other constitutional bodies through the Constitutional Council in the future. We have expressed the view that this could create a situation where the ruling party recruits its cadres. 

The constitution provides for the recommendation of a judge who has completed 3 years in the Supreme Court for appointment as Chief Justice. How is the process and tradition being violated by recommending one of them?

Nepal has an 80-year-long constitutional and judicial history. Constitutional bodies and the judiciary have operated based on established procedures and traditions. We have maintained the seniority order since then. The constitution recognizes this. If it were a suddenly created provision not recognized by the constitution, that would be a different matter. Another significant issue is that we disagree with the process through which this came about. For instance, considering 3 members as a majority in a 6-member Constitutional Council is not appropriate in any sense. However, we could not accept the ordinance that included the provision of considering 3 members as a majority from a legal perspective. The processes initiated through the ordinance are not sending a good signal. 

You opposed the provisions regarding the operation of the Constitutional Council in the council meeting through the ordinance. What will you do in the parliament now?

We will definitely raise the issue in the parliament. Our party has already decided this. The parliamentary session has been convened, and we will discuss how to present ourselves. 

 We will introduce an amendment when the ordinance comes to parliament as a bill and engage in discussions. We will not remain silent when ordinances that go against the spirit of the constitution are introduced. 

After you expressed your intention to register a written disagreement on the Chief Justice appointment recommendation, what did the Council Chairperson, the Prime Minister, say? 

He had the Chief Secretary (who is the council's secretary) read out his proposal. After he read it, it seemed like it was presented for a decision rather than for discussion. Following that, discussions and debates began. If an informal meeting had been held before the Constitutional Council meeting to briefly discuss this matter, we might have started efforts to reach an understanding. Even if an understanding wasn't reached, a sense of cordiality could have been fostered. However, the way he presented himself in the meeting itself took more time. He presented the fourth name for a decision. I did not expect him to do that. It would have been more appropriate if he had discussed it beforehand to understand the situation. 

When presenting the decision, did the Prime Minister attempt to justify why he was proposing the appointment recommendation?

He had the Chief Secretary read out the agenda. The Chief Secretary read it. After that, he presented it as if it were a decision. After we expressed our views, he stated that the appointment was recommended based on capability and performance. He also mentioned the number of cases settled. However, if we consider the number of cases, there were others in terms of proportionality. We had no reason to silently agree without protest to his approach of considering only performance and capability as the basis. He could not substantiate it. After the agenda was presented, some discussions began, and the meeting lasted a long time as we presented our respective arguments and justifications. 

Was there an argument in the meeting?

There was bound to be an argument! I spoke after he did. He presented his arguments, and we presented ours. However, I consider the meeting to have been cordial. We submitted our written disagreement amicably. The Speaker and other members were present. Their roles were good. It was all done with decorum. 

What was the Deputy Speaker's role in the meeting? 

Her role, as a Member of Parliament from the Labour Culture Party who became the Deputy Speaker, was somewhat surprising to us. When the Prime Minister asked the Deputy Speaker for her opinion, she simply commented,