KATHMANDU: In the wake of the Gen Z protest, the government led by former Chief Justice Sushila Karki mandated the recall of Nepali ambassadors from 11 countries. However, the Supreme Court swiftly intervened, issuing an stay order that immediately suspended the executive decision, citing potential detriment to diplomatic relations. The injunction was delivered by the division bench of Justices Sharanga Subedi and Shrikant Poudel on November 2.

The court’s stay order, on one hand, obstructed the government’s decision. Due to the stay order, the Ministry of Foreign Affairs instructed the recalled ambassadors to report to and work at the Ministry of Foreign Affairs itself. To the extent that the court’s stay order is still causing difficulty for the Ministry of Foreign Affairs.

Some recalled ambassadors have resigned. Some have been ordered to report to the Ministry of Foreign Affairs, while others have taken home leave. This is a recent example of an stay order obstructing the implementation of a government decision. However, the issuance of stay orders in writ petitions filed in court has become exceedingly common.

Let us look at another example of an stay order: The dispute over the formation of the provincial government in Madhesh Province reached the Supreme Court. The Supreme Court issued an stay order against the new Madhesh Province government, formed under the leadership of CPN (UML) leader Saroj Kumar Yadav, asking it not to make any long-term decisions, citing that “serious questions have arisen regarding the values of parliamentary democracy.” The division bench of Justices Nahakul Subedi and Sunil Kumar Pokharel gave the stay order on November 18. Chief Minister Saroj Kumar Yadav had been appointed with the signature of 74 members of the provincial parliament.

A writ petition was filed in the Supreme Court claiming Yadav’s appointment was unconstitutional. The stay order has cast uncertainty over the future of the Yadav-led government. Following the court’s order, the new Chief Minister has been unable to make any decisions of long-term significance. In a way, the stay order has tied Yadav’s hands.

Meanwhile, about three years ago, Kathmandu Metropolitan City (KMC) instructed Norvic International Hospital to remove structures built on public land within 24 hours. Metropolitan Chief Balendra Shah himself visited Norvic and posted a notice to remove the structures. Against that, a writ petition was filed at the Supreme Court, and on August 10, 2022, a single bench of Justice Manoj Kumar Sharma issued a short-term stay order. That order put a halt to the implementation of the metropolitan city’s directive.

The Supreme Court issued an stay order against the new Madhesh Province government, formed under the leadership of CPN (UML) leader Saroj Kumar Yadav, asking it not to make any long-term decisions, citing that “serious questions have arisen regarding the values of parliamentary democracy.”

Lately, that case, in which another order was issued by a division bench of the Supreme Court on September 11, is currently sub judice in the court. Norvic Hospital had constructed physical structures on public land registered in the name of the government, violating the agreement and without map approval. The Metropolitan City sought to remove the building constructed on that land, which violated government standards. However, the court’s order maintained the status quo.

These examples are sufficient to understand how existing government decisions are affected by stay orders. Let us look at a different example: The provincial assembly membership of Gandaki Province member Phanindra Devkota was revoked because he voted confidence in the Chief Minister against his party’s whip on June 10, 2024. Devkota, who was elected from Gorkha 2(a) on behalf of the then Nepal Socialist Party, was removed from his post by Speaker Krishna Dhital. He had won under the Maoist Center symbol as a coalition candidate but was punished by the Maoists themselves. Against that decision, Devkota filed a writ petition in the Supreme Court on June 20, 2024. The Supreme Court issued an stay order on June 23, 2024, keeping his position intact. His position was saved after the stay order. However, the matter of the action taken against him remains undecided, as the case is not being finalized on time.

The effect of stay orders on the country’s justice system is alarming. The issuance of stay orders is increasing in many of the writs currently being sought. In some writs, an stay order is issued initially, but the final decision takes four or five years. The situation where no decision is implemented after an stay order, and work that has begun is automatically halted, increases public damage. In some cases, delayed verdicts benefit those with access. This also causes damage to the government and the general public.

According to Supreme Court data, there are currently 1,012 pending cases in which stay orders have been issued. In most cases, it appears that a single bench, meaning a single justice, issued the stay order after the preliminary hearing. The Supreme Court had resolved cases that were eight years old by the end of last fiscal year. However, more than 25,000 cases remain to be decided since then.

Devkota filed a writ petition in the Supreme Court on June 20, 2024. The Supreme Court issued an stay order on June 23, 2024, keeping his position intact.

Multifaceted damage from stay orders

One only needs to look at a Supreme Court study to know the risk posed by stay orders. A five-member study committee formed under the coordination of the then Supreme Court Co-Registrar Hari Raj Karki analyzed the multidimensional risks of stay orders. That study was titled “Study Report on the Potential Impact of stay Orders When Writs Are Not Issued in Petitions Where Stay Orders Were Given by the Supreme Court, 2021.”

The study examined 1,053 writ petitions resolved by the Supreme Court in the fiscal year 2018/19. Among them, stay orders were issued in 36.41 percent of the cases registered in that one year. The study report mentions that these writs with stay orders were kept pending because a final decision had not been issued.

Similarly, in 71.06 percent of the cases where a final order was issued by the court, the stay order was continued, while 28.93 percent of the writs were dismissed. Among the 1,053 writs included in the study, 51 percent, or at least 541 of them, demanded an stay order. Among those, an stay order was issued in 36 percent, or at least 197, of the writs.

The practice where the court issues an stay order at the outset but dismisses the writ in the final verdict allows one party to gain an advantage. The Supreme Court’s study indicates that this also creates a risk of public damage. When an stay order is issued initially, the implementation of any work or decision is obstructed. Later, when the final verdict is delivered and the writ petition is dismissed, the petitioner is found to have benefited during the intervening period.

There are currently 1,012 pending cases in which stay orders have been issued. In most cases, it appears that a single bench, meaning a single justice, issued the stay order after the preliminary hearing.

The Supreme Court study identified the tendency for long delays in hearings following an stay order, which ultimately leads to the dismissal of the writ, as a “risk.” The study states, “Even if an stay order is issued initially, its dismissal in the final verdict results in losses such as personal financial damage, adverse effects on an individual’s career development, delay in development and construction, impact on public interest, delay in fulfilling legal duties, impact on judicial proceedings, and damage to the state treasury.”

Among the writs related to stay orders included in the study, 12 percent were revealed to have caused public damage. It is mentioned that 16 percent of the writs affected the government treasury in some form.

The study also suggests that to minimize damage, it would be desirable to hold speedy hearings for cases where stay orders have been issued. It also suggests establishing a system of issuing stay orders based on discussions between both parties instead of individual hearings.

The study recommends reviewing the situation where cases remain undecided for a long time, and the party receiving the stay order tries to prolong the case based on that order. The study report states, “A condition should be set that if damage or loss occurs when an stay order is issued, compensation must be borne. Damage should be reduced by ensuring speedy final hearings and resolution.”

Among the writs related to stay orders included in the study, 12 percent were revealed to have caused public damage. It is mentioned that 16 percent of the writs affected the government treasury in some form.

Indeed, court stay orders often halt everything from career advancement to road expansion and development work. This results in obstacles to physical infrastructure, plans not finishing on time, delays, and increased investment costs. The risk of increased accidents due to untimely road expansion also remains.

Final verdict always delayed

It has become a common problem for writs with stay orders to be pending for a long time. However, the court and judges are not the only culprits. Cases with stay orders also remain pending for a long time due to the non-cooperation of the writ petitioners. The party to the case often tries to prolong the case once they receive an stay order according to their initial demand. When related documents and details requested by the court are not provided on time, the stay order is continued for a long time.

According to Supreme Court Spokesperson Arjun Prasad Koirala, the pressure of cases in the court is not the only reason for the prolonged nature of cases with stay orders.

Koirala says, “This is the first reason. Besides this, another problem is that the writ petition does not even get scheduled for a hearing, or it is delayed. Similarly, because many legal professionals are involved in the debate of both parties to the case, and the debate is long, it takes time for the stay order to take the form of a final decision.”

Senior Advocate and constitutional law expert Dr. Chandrakanta Gyawali’s opinion differs from Koirala’s on why stay orders take a long time to become final decisions. He states that it takes time because some serious, constitutional, and complex cases receive stay orders. Gyawali asserts that stay orders are issued on decisions made by the government and government agencies outside the law, and these take time to be resolved.

“If judges could establish a system of studying the writ petition beforehand and creating main questions to be given to the lawyers involved in the debate, cases could be resolved quickly. Many countries have a system of giving time limits for debate on the bench; this can also be done in Nepal,” said Gyawali.

Meaning of stay order

An stay order is an order immediately issued by the court after a writ petition is filed for legal remedy when an individual’s rights are being violated or are about to be violated.

After a writ petition is filed, the court may issue an stay order until the final decision is reached, with the aim of preventing immediate further damage to the petitioner. The law grants the court alone the right to halt any matter at the status quo.

Supreme Court. Photo: Bikram Rai

There is a legal provision that anyone can file a writ petition in court requesting an stay order if there is an abuse of power by the executive, policy decisions are made, or the use of fundamental rights provided by the constitution is hindered.

Indeed, writ petitions are currently being filed in all three tiers of courts demanding the annulment of laws that contradict the constitution, including legal violations. If the government dismisses someone, the Council of Ministers makes a wrong decision, or a government or public body makes a wrong decision, a writ petition can be filed in the High Court or Supreme Court for remedy.

Article 133 of the Constitution provides that one may file a writ petition if the fundamental rights conferred by the Constitution are restricted or if a law contradicts the Constitution for any other reason. Rule 49 of the Supreme Court Regulation, 2017 contains the “provision regarding stay order.” The regulation states, “The petitioner may demand that an stay order be issued, detailing the circumstances if the matter claimed by him is not kept in status quo until the final resolution of the petition.” Sub-rule 2 of the same regulation provides that an stay order may be issued “if it appears that irreparable damage will be caused to the party seeking the stay order, or if there is a serious violation of fundamental rights or legal provisions, or if it is deemed fair and necessary from the perspective of the balance of convenience.”

The High Court Regulation, 2016, in Rule 42, and the District Court Regulation, 1995, in Rule 18, also contain provisions for stay orders. Similarly, the District Court Regulation, 2017, in Rule 34 has a similar provision. According to these provisions, writs are filed demanding any stay order, and stay orders are issued by the District, High, and Supreme Courts.