Kathmandu, July 11: The Supreme Court has issued an interim order barring the government-formed Asset Investigation Commission from compelling former judges and other constitutional office holders, who can only be removed through impeachment, to submit their asset details.
A joint bench of Justices Tek Prasad Dhungana and Shrikanta Paudel issued the order, stating that the constitutional protections under Article 239 apply to such office holders.
The order came while hearing a writ petition filed by Advocate Dr Prem Raj Silwal and others, who argued that the government had unconstitutionally formed the Asset Investigation Commission.
Until a final verdict is delivered by a full bench, the court has directed the commission not to compel anyone covered by Article 239 of the Constitution to submit asset details. It also ordered the commission not to examine any asset declarations already submitted and not to recommend legal action against anyone.
According to Supreme Court spokesperson Arjun Koirala, the phrase “anyone” used in the order refers only to officials specifically covered under Article 239 of the Constitution and does not apply to all individuals.
The ruling is expected to affect former judges, former constitutional office holders, and retired Nepal Army officers. The order, however, does not clearly state whether it also applies to serving military officers.
Article 239 of the Constitution bars the Commission for the Investigation of Abuse of Authority (CIAA) from investigating officials who can only be removed through impeachment, judges who are subject to the Judicial Council’s disciplinary process, and military personnel governed by the Army Act until they are removed from office.
Although serving judges and incumbent constitutional office holders are not required to submit asset details under the commission’s current process, those who have already left office through impeachment, Judicial Council proceedings, or under the Army Act would otherwise be required to do so.
During the hearing, the Supreme Court raised three key constitutional questions.
First, whether forming a separate Asset Investigation Commission under the Commission of Inquiry Act, 1969 is constitutional when the Constitution has already designated the CIAA as the authority responsible for investigating corruption.
Second, whether the commission’s investigation into officials who fall under the constitutional jurisdiction of impeachment, the Judicial Council, or the Army Act amounts to an unconstitutional encroachment on those constitutional mechanisms.
Third, whether appointing a former Supreme Court justice as chair of the commission is constitutional, given that Article 132 prohibits former chief justices and Supreme Court justices from holding any other government office, except positions in the National Human Rights Commission.
Concluding that the petition raises serious and complex constitutional and legal questions, the Supreme Court has referred the case to a full bench. If the Chief Justice determines that additional constitutional issues are involved, the case could also be heard by the Constitutional Bench.
Given the significance of the matter, the court has granted it priority status and ordered that it be listed for hearing within 15 days. It has also directed the Nepal Bar Association and the Supreme Court Bar Association to each nominate two amicus curiae, or friends of the court, within one week.
The order comes after the commission has issued a public notice requiring asset declarations to be submitted by the end of the Nepali month of Asar. The full bench will now determine the commission’s constitutional validity and jurisdiction.
People’s News Monitoring Service
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