KATHMANDU: In December 2020 and May 2021, then–and now–Prime Minister KP Sharma Oli’s government appointed 52 individuals to Nepal’s constitutional bodies using controversial ordinances, sidestepping the constitutionally mandated parliamentary hearings. The ordinances altered the Constitutional Council’s quorum, allowing decisions with fewer members. These sparked legal challenges alleging abuse of executive power and violation of constitutional procedures.
After four years of hearings and political deadlock, the Supreme Court’s Constitutional Bench delivered a divided verdict on July 2, 2025, validating the appointments by majority. Justice Sapana Pradhan Malla supported the decision but proposed retrospective parliamentary hearings as a remedy—offering a middle path between legality and democratic accountability.
What did the Supreme Court rule on the 52 constitutional appointments made during Oli’s tenure?
The Supreme Court’s Constitutional Bench upheld all 52 appointments made to constitutional bodies by Prime Minister KP Sharma Oli’s government in two phases—32 in December 2020 and 20 in May 2021. The verdict, delivered after four months of deliberation, came through a 3-2 majority.
Justices Manoj Kumar Sharma, Kumar Chudal, and Sapana Pradhan Malla formed the majority, validating all appointments. In contrast, Chief Justice Prakashman Singh Raut and Justice Nahakul Subedi dissented regarding the first batch of 32 appointments, arguing they were unconstitutional due to procedural flaws. Despite the dissent, the majority concluded that the appointments were legally valid.
The ruling ends a prolonged four-year dispute, removing uncertainty over the status of officials in critical constitutional bodies. Most appointees remain in office, with only a few replaced due to retirement or death.
The decision balances strict constitutional interpretation with practical considerations for governance continuity.
Importantly, Justice Malla acknowledged the need for parliamentary hearings as a corrective measure, suggesting all appointees undergo vetting within 45 days, preserving both legal integrity and democratic legitimacy.
Why were these appointments disputed despite being legally finalized by the government?
The controversy stemmed from how the appointments were made—without mandatory parliamentary hearings, which are constitutionally required. Prime Minister Oli’s government, during a period when Parliament was dissolved, issued two ordinances that amended the Constitutional Council Act, lowering the quorum needed to recommend appointments. Critics alleged this was a deliberate maneuver to bypass parliamentary oversight.
The changes allowed the Council to make decisions with as few as three members present, including the Prime Minister, drastically weakening institutional checks. The appointments were fast-tracked through evening meetings, triggering concerns about executive overreach. Legal challenges followed, with 14 writ petitions filed, led by lawyers such as Om Prakash Aryal.
Petitioners demanded annulment of the appointments, citing violations of democratic norms and misuse of constitutional loopholes. While the Supreme Court upheld the legality of the appointments, dissenting justices agreed with the petitioners regarding the first batch. Justice Malla, in a notable legal stance, advocated for sending the appointees to retrospective parliamentary hearings, acknowledging both the procedural breach and the need for institutional resolution.
How did the court justify the use of ordinances for these appointments?
The Supreme Court examined whether the President’s promulgation of ordinances—specifically those altering the quorum of the Constitutional Council—was constitutionally valid. Justices Sharma and Chudal ruled that under Article 114 of the Constitution, ordinances are legal instruments if issued when Parliament is not in session and urgent action is needed.
Both ordinances (issued in December 2020 and May 2021) met this condition, making them legally binding. Once certified by the President, ordinances automatically come into effect and carry the force of law.
The court dismissed arguments that these ordinances lacked necessity or legitimacy. However, dissenting justices questioned the intent and timing, arguing the ordinances served political rather than legal necessity. Justice Malla supported the legality of the ordinances but emphasized that constitutional spirit must be preserved through retrospective hearings.
The ruling clarifies that while ordinances can legally enable urgent actions, their use should not erode democratic oversight, particularly regarding high-level constitutional appointments. The court’s interpretation sets a precedent that balances urgency with accountability.
Did Speaker Agni Sapkota receive valid notice about the Constitutional Council meeting?
The question of whether Speaker Agni Sapkota received proper notification of the December 15, 2020 evening meeting, where key appointments were finalized, was a focal legal issue. Chief Justice Raut and Justice Subedi ruled that Sapkota had not been formally notified, thus invalidating the evening session. They maintained that the morning meeting was itself flawed, rendering any continuation or decisions taken in the evening illegitimate.
In contrast, Justices Sharma and Chudal argued that Sapkota had attended the morning meeting and, by not objecting later, tacitly accepted the process. They viewed his silence as implied consent, a recognized principle in law.
Justice Sapana Malla did not explicitly dissent from this interpretation, effectively aligning with the majority.
The court thus validated the appointments, despite the notification dispute.
The legal implication is significant: procedural sufficiency was prioritized over explicit transparency, creating a precedent that in the absence of objection, participation implies endorsement—a doctrine with broader applicability in Nepal’s institutional decision-making.
What did Justice Sapana Pradhan Malla propose as a legal remedy?
Justice Sapana Pradhan Malla offered a pragmatic and reconciliatory solution that stood out in the bench’s deliberations. While agreeing with the majority that the appointments should not be annulled, she stressed the need to restore constitutional integrity through corrective mechanisms.
Justice Malla’s proposal: send all 52 appointees for parliamentary hearings within 45 days. If they pass, their appointments would be considered valid retroactively. Malla’s suggestion reflects a balance between legal technicality and democratic legitimacy. She warned that invalidating the appointments after four years would destabilize governance and erode institutional confidence.
However, Justice Malla recognized the procedural shortcomings, especially the bypassing of legislative oversight. Her legal reasoning emphasized that courts must offer solutions, not just judgments, especially in protracted constitutional disputes. Though not the majority view, her proposal was seen as a potential path forward for the Parliament to legitimize contested appointments through delayed but constitutionally sound procedures. It showcased her legal philosophy: protect institutions, uphold democracy, and offer constructive constitutional remedies over punitive reversals.
How did the court treat Speaker Sapkota’s silence on the second batch of appointments?
Speaker Sapkota had challenged the first phase of appointments (December 2020) but remained silent on the second batch made in May 2021. The Supreme Court took this silence as tacit approval, especially since he did not question the quorum or procedures of the second meeting. Chief Justice Raut and Justice Subedi, though dissenting on the earlier appointments, agreed that Sapkota’s inaction implied procedural acceptance.
This interpretation is grounded in the legal doctrine that failure to object at the appropriate time constitutes implied consent.
Justice Malla and the majority accepted this position, making the second batch of 20 appointments legally unchallenged. This differentiation in judicial treatment shows that active dissent is required to challenge decisions in time-sensitive governance matters.
The ruling underlines that procedural objections must be raised promptly, or else the legitimacy of actions becomes presumed. It also emphasizes institutional responsibility, reminding officials that silence has legal consequences in high-stakes constitutional procedures.
Can courts review the constitutionality of expired or annulled ordinances?
The court concluded that annulled or expired ordinances are not subject to constitutional review, because they no longer have legal effect. Justices Sharma and Chudal cited existing precedent: only active laws and ordinances can be examined for constitutional validity.
This position limits judicial review to legislation that is currently in force, helping prevent courts from expending resources on legally defunct matters. The Oli-era ordinances, while controversial, had already expired or been repealed, making them moot in the eyes of the law. However, this interpretation received limited discussion from the dissenting justices.
The ruling thus restricts courts from reviewing lapsed executive actions, unless they resulted in enduring consequences—like appointments—which are then judged on their own merit. It highlights a crucial boundary in Nepal’s constitutional jurisprudence, protecting the judiciary from engaging in theoretical or symbolic assessments that have no tangible legal impact.
What long-term impact will this ruling have on constitutional governance in Nepal?
The ruling marks a significant precedent for executive-legislative-judicial balance in Nepal. By upholding appointments made through controversial ordinances, the court reinforced the legal status of officials in critical bodies, avoiding institutional paralysis.
It also implicitly cautioned against executive overreach through ordinances, urging future governments to act with restraint.
The justices’ divided opinions reflect deeper tensions within Nepal’s constitutional framework—between procedural purity and political practicality.
Justice Malla’s remedy-oriented approach provides a model for constitutional problem-solving, advocating legislative correction over judicial invalidation. The verdict also signals the need to reform the Constitutional Council Act and define clearer rules for appointments, especially when Parliament is dissolved.
Going forward, this decision will likely influence how ordinances are drafted, how Council meetings are held, and how parliamentary hearings are scheduled. It strengthens the case for checks and balances, warning political actors that shortcuts today can create legal deadlocks tomorrow. The ruling is thus a milestone in Nepal’s evolving democratic jurisprudence.
