Attorney General, govt’s lawyers raise question over new Constitutional Bench, demand review

KATHMANDU, June 6: Hearing on writ petitions filed against the dissolution of the House Representatives (HoR), which was disrupted for a few days owing to the row over the composition of the Constitutional Bench resumed on Sunday. 

The Bench, which Chief Justice Cholendra Shumsher JBR formed on May 28, comprised  Justices Dipak Kumar Karki, Dr Aanand Mohan Bhattarai, Tej Bahadur KC and Bam Kumar Shrestha including Rana himself. The composition of the Bench, however, was questioned by the lawyers pleading in favor of the writ petitioners who demand the Supreme Court (SC) reinstate the 275-member lower house of parliament.

CJ Rana made the recent reshuffle on Sunday on the basis of the seniority of SC Justices. With the recent reshuffle, Justices Dipak Kumar Karki, Mira Khadka, Ishwar Prasad Khatiwada and Anand Mohan Shrestha have been picked in the Bench headed by Rana himself.  Although justice Hari Krishna Karki is third in seniority among the SC Justices, he was included in the bench owing to his health issues. 

CJ Rana had made an agreement with Nepal Bar Association to form the constitutional bench based on seniority. The constitutional bench was formed again based on seniority after the dispute surfaced on the case relating to HoR dissolution. CJ Rana has scheduled a hearing on it today.

In case of the need for substantial constitutional interpretation of the case sub judice in the Supreme Court, there is a provision that CJ assigns justices in the constitutional bench to settle the case. The constitution has given authority to the SC to conduct such a bench.

However, as soon as the hearing kicked off on Sunday afternoon, the lawyers  from the government’s side started raising questions over the composition of the newly formed Bench. Advocate Raja Ram Ghimire, who has also registed a writ petition demanding the appointment of KP Sharma Oli as the prime minister in accordance with Article 76(5) of the constitution, was one among the lawyers to raise questions over the new Bench. He even submitted an application at the Bench asking the apex court not to include 11 Justices due to their involvement at various benches in the past. 

He was of view that Justices including  Dipak Karki, Mira Khadka, Hari krishna Karki, Bishwambhar Shresha, Ishwar Khatiwada, Ananda Mohan Bhattarai, Anil Sinha, Prakash Man Singh Raut, Sapana Pradhan Malla, Tej Bahadur KC and Bam Kumar Shrestha should not bench the hearing. 

Responding immediately after he submitted the petition, Chief Justice Rana asked him to withdraw  and warned of taking an action for contempt of court. Rana said it is not the right of legal practitioner(s) to decide the appointment of judges.. He, however, refused to withdraw his petition. 

Former Attorney General Agni Kharel, how was also pleading for Prime Minsiter KP Sharma Oli, also questioned over the composition of the Bench. He even wondered whether the Bench could pass a fair and impartial verdict.  Kharel insisted that Justices duo Anand Mohan Bhattarai and Dipak Karki should be the part of the Bench. 

Advocate Sushil Panta, pleading in favor of the House dissolution, asked why Justices Tej Bahadur KC and Bam Kumar Shrestha can not bench the hearing. Both KC and Shrestha were relieved of the Bench and thus replaced by Mira Khadka and Ishwar Prasad Khatiwada. 

In the course of hearing, when Baburam Dahal, Prime MInister KP Sharma Oli’s legal expert, was about to debate over the case, Justice Khdatiwada interfered and said that they [Justices] were not feeling comfortable. “No more discussion on the composition of the Bench as it is the matter of debate,” he added.

Attorney General Ramesh Badal was among those raising questions over the constitution of the Bench headed by CJ Rana. He questioned the ground to oust  the two Justices from the  Bench and the reappointment of two who voluntarily left the Bench earlier.