Supreme Court Issues Interim Order Against Civil Service Union Ordinance

Kathmandu. The Constitutional Bench of the Supreme Court has issued a short-term interim order not to implement the ordinance brought to abolish the trade union of civil servants immediately. The ordinance, 'Some Nepal Laws (Amendment) Ordinance, 2083', section 10, has been ordered not to be implemented by a majority opinion of Acting Chief Justice Sapana Pradhan Malla and Justices Kumar Regmi and Hariprasad Phuyal. The other two justices on the Constitutional Bench, Binod Sharma and Sharanga Subedi, expressed a different opinion, stating that an immediate interim order should not be issued. The ordinance issued by the government on 2083 Baishakh 20 had amended the Civil Service Act, 2049, by abolishing the provision of official trade unions for employees. The ordinance had removed the provision related to trade unions and in its place established a system for listening to the grievances of civil servants. After the ordinance was issued, the Ministry of Federal Affairs and General Administration closed the trade union offices on Baishakh 22, and the Department of Labor and Business Safety issued a notice abolishing the trade unions on Baishakh 23. The Nepal Civil Service Employees' Organization, through its central working committee chairman Bhawani Dahal and others, filed a writ in the Supreme Court against the government's move, making the Office of the President, Shital Niwas, a defendant. The petitioners claimed that the ordinance and the notices issued based on it conflicted with the freedom to form associations granted by Article 17 of the constitution and the right to form trade unions and collectively bargain granted by Article 34. They demanded that the ordinance be declared unconstitutional and void, and that the actions of freezing bank accounts and obstructing office operations be stopped immediately. A total of 22 lawyers, including Shambhu Thapa, Harihar Dahal, and Agniprasad Kharel, argued in court on behalf of the petitioners. The bench has issued a show-cause order asking the respondents to submit a written response within 7 days, excluding the travel time, as to why the order sought in the writ should not be issued. In the majority opinion of the justices, it was stated that the provision related to trade unions is linked to the constitutional guarantee of freedom to form associations and the right to form trade unions and collectively bargain, and therefore, the ordinance should not be implemented immediately. The court has called both parties for discussion on Jestha 6 to decide whether to issue an interim order. Meanwhile, Justices Binod Sharma and Sharanga Subedi have written a dissenting opinion, disagreeing with the issuance of a short-term interim order. In their opinion, they mentioned that the ordinance issued by the President on the recommendation of the Council of Ministers under Article 114 of the constitution is valid like an act, and the process of presenting it to the Federal Parliament and accepting or rejecting it is still pending. They stated that the session of the Federal Parliament has also been convened since Baishakh 28, and since there is no situation of irreparable damage to the petitioners immediately, they cannot agree to issue a short-term interim order based on ex-parte hearing without discussing with the respondents. However, all the judges are unanimous on summoning both parties for discussion and issuing a show-cause order.