Chances of House Reinstatement Diminish as Election Date Nears

Kathmandu. With the date for the House of Representatives election fixed for February 21st, the issue of reinstating the House of Representatives is moving towards becoming irrelevant.

Following the CPN-UML agitation on Bhadra 23 and 24, the newly formed government dissolved the House of Representatives and announced the election date, leading to 18 writ petitions being filed in the Supreme Court. Although written responses have been received from the respondents in these petitions demanding reinstatement, the court has placed the petitioners on ordinary dates.

The Supreme Court has refused to issue an interim order on these writ petitions and has also declined to grant them priority hearing. The Supreme Court has now sent the writ petitioners off with an ordinary date set for Magh 28. Previously, the date was set for Magh 20. With the petitioners again given an ordinary date, it is now impossible for a hearing to be scheduled and concluded before Falgun 21 due to time constraints and court procedures.

On an ordinary date, the parties involved in the case appear in the Supreme Court, receive the next date, and leave. The case is not heard. Even if a hearing were to take place in the Supreme Court, it does not appear possible for the case to be concluded with a hearing scheduled in Falgun.

'The possibility of the House of Representatives being reinstated even if the Supreme Court hears the case now appears slim,' said Senior Advocate Dinesh Tripathi. 'If the hearing had been continuously conducted on the dates set in Kartik, the case would have been concluded. The election process has advanced significantly now; the Supreme Court does not appear capable of ordering a halt to the elections now.'

'It does not seem possible in the next month to reinstate the old parliament following the CPN-UML agitation,' Senior Advocate Tripathi said. 'The state has invested heavily in the election; in this situation, the court cannot stop the election by conducting continuous hearings.'

Lawyers, along with then-members of the Nepali Congress and CPN-UML, had approached the Supreme Court demanding the reinstatement of the House of Representatives. Initially, MPs from the two major parties did not approach the Supreme Court with this demand. During the hearing of the writ petitions filed by lawyers, Chief Justice Prakashman Singh Raut questioned how many MPs had filed petitions for reinstatement.

Considering that the MPs did not come forward with the demand for reinstatement concerning their own interests, the Supreme Court refused to grant priority hearing to the 16 writ petitions filed by the lawyers. While Advocate Ananta Raj Luitel and others were arguing, Chief Justice Raut mentioned the situation on Bhadra 23 and 24 in the bench. Raut's question was, 'Was the situation such that the constitution could be brought to life as you say? What was the situation at Shital Niwas? What was the situation of the Supreme Court?'

He stated that the situation at that time was not as normal as it is now. 'What was the state of the Supreme Court? Where were the honorable members? What was the condition of the Prime Minister at that time? Was it a normal situation like now, or was it an extraordinary circumstance? Was there a situation to protect the constitution like there is now?' he asked.

Coincidentally, a few days after the Chief Justice posed questions in the Constitutional Bench, MPs from the Nepali Congress and CPN-UML filed writ petitions demanding the reinstatement of the House of Representatives. However, by the time the two parties registered the writs in the Supreme Court, the election process had already moved forward. The two parties have registered for the election by 'setting a trap' in court. Since the parties demanding the reinstatement of parliament are already engaged in the election, the possibility of the Supreme Court resolving the matter quickly is slim.

In its preliminary hearing on this case, the Supreme Court had sought written responses from the President, the Prime Minister, the then-Speaker, and the Election Commission. The written responses from all respondents have reached the Supreme Court. After receiving the written responses from all parties, the Supreme Court placed the writ petitioners on ordinary dates.

What might happen?

Even if a hearing is scheduled for the second week of Falgun, the court might order the summoning of 'Amicus Curiae' as assistants for the bench, raising serious constitutional questions in this case. In the past, the Supreme Court has ordered the summoning of Amicus Curiae in matters where serious constitutional questions have arisen.

In the case against the dissolution of parliament by then-Prime Minister KP Sharma Oli in 2077, serious constitutional questions were raised, and the court heard the case after summoning two Amicus Curiae each from the Nepal Bar Association and the Supreme Court Bar Association. At that time, the court prioritized the case against the dissolution of parliament and gave a verdict after continuous hearings. Then-Prime Minister KP Sharma Oli had dissolved the ongoing parliament and announced elections. After the second dissolution of parliament, the Supreme Court issued a mandamus order to appoint the majority-holding MP (at that time, Nepali Congress President Sher Bahadur Deuba) as Prime Minister. The parliament dissolution at that time occurred due to internal party disputes at the whim of then-Prime Minister Oli, whereas the current dissolution occurred after the CPN-UML agitation on Bhadra 23 and 24.

The writ filed in the Supreme Court argues that the dissolution of the House of Representatives by the government formed on the strength of the CPN-UML agitation is unconstitutional. The writ petitioners themselves have lost hope that a decision will be made before the election in this dispute against the dissolution, where the Supreme Court did not grant priority hearing. Writ petitioner Kirtinath Sharma Paudel states that there is no certainty of a hearing before Falgun 21. Advocate Paudel mentions that even if the hearing takes place after the Falgun 21 election, there is still hope that the court will issue some directive order regarding the unconstitutionally dissolved parliament.

Chief Justice Prakashman Singh Raut is due to retire mandatorily on Chaitra 18. He might go on leave starting from Falgun 18, one month before his retirement. 'The possibility of a date being set for the writ on the reinstatement of the House of Representatives before Falgun 18 is extremely low,' a Supreme Court source said. 'It does not seem very possible for the Chief Justice to set a date in the first week of Falgun and conduct continuous hearings. The case might extend to the next week as the components of the case need to be completed. Since the Chief Justice will be on leave starting from the second week of Falgun, there is no possibility of a bench convening at all.'