New Constitutional Bench to be formed on June 6 to hear House dissolution case in Nepal

·4-min read

Kathmandu, Jun 2 (PTI) A new Constitutional Bench of Nepal's Supreme Court will be formed on June 6 to hear a bunch of petitions challenging the dissolution of the House of Representatives, the Chief Justice announced on Wednesday after differences among justices over its composition delayed the crucial hearing.

Chief Justice Cholendra Shumsher Rana’s announcement came as justices Deepak Kumar Karki and Anand Mohan Bhattarai on Wednesday opted out of the five-member Constitutional Bench, presided over by the Chief Justice and hearing the House dissolution case.

The two justices opted out after justices Tej Bahadur KC and Bam Kumar Shrestha refused to recuse themselves from the case, The Himalayan Times reported.

Nepal President Bidya Devi Bhandari dissolved the 275-member House of Representatives on May 22 for the second time in five months and announced snap elections on November 12 and November 19 on the advice of Prime Minister K P Sharma Oli, heading a minority government.

Earlier, the petitioners challenging the House dissolution case had demanded that justices KC and Shrestha recuse themselves from the case, citing conflict of interest.

Justice Shrestha was on the Supreme Court bench that nullified the unification of the CPN-UML and the CPN-Maoist Centre and justice Tej Bahadur KC was on the apex bench that rejected the review petition challenging the decision nullifying the unification of the CPN-UML and the CPN-MC.

The petitioners argued that the nullification of the unification of the UML and the CPN-MC eventually led to the dissolution of the House of Representatives (HoR).

Justices Tej Bahadur KC and Shrestha, however, responded that there was no meaningful link between Rishi Ram Kattel's case against Nepal Communist Party (NCP) (that led to the nullification of the unification of the UML and the CPN-MC) and the HoR dissolution case, the report said.

They argued that there was an established principle in the USA whereby judges recused themselves from cases in which they had an economic interest or when there was a strong possibility that their decision would be biased, but that was unlikely in this case.

Earlier, when the House was dissolved for the first time on December 20, Justice Hari Krishna Karki recused himself from the HoR dissolution case after petitioners pointed out that he was appointed the attorney general by Prime Minister K P Sharma Oli-led government before being nominated as the Supreme Court justice.

The Supreme Court Bar Association (SCBA) office bearers, meanwhile, met Chief Justice Rana on Wednesday and urged him to appoint four senior-most justices to the Constitutional Bench headed by him to avoid any controversy, SCBA Chief Purna Man Shakya said.

“The chief justice also agreed to amend the Supreme Court (Constitutional Bench Operation) Regulations 2072 BS and appoint judges to the Constitutional Bench based on seniority,' Shakya told The Kathmandu Post.

The Supreme Court of Nepal on Tuesday agreed to form a Constitutional Bench on the basis of the seniority of the judges.

The controversy over the recusal led to the postponement of the hearing on Monday. Thirteen justices who are on the roster for the Constitutional Bench dwelt on the recusal issue on Monday.

Chief Justice Rana’s decision to amend the Supreme Court (Constitutional Bench Operation) Regulations to constitute a new bench has averted a possible confrontation, experts say.

“What has happened should serve as a wake-up call for the Supreme Court and its justices,” said Balaram KC, a former Supreme Court justice.

“This is a good opportunity for the judiciary to regain its image. It’s incumbent upon the chief justice to start a serious conversation with senior lawyers and his colleagues and take necessary actions.” As many as 146 members of the dissolved HoR, including Nepali Congress President Sher Bahadur Deuba, who had staked a claim to form the new government under Article 76 (5) of the Constitution, have also filed a petition in the Supreme Court seeking reinstatement of the House.

President Bhandari rejected the separate bids of both Prime Minister Oli and the Opposition alliance's claims to form a new government, saying the “claims were insufficient.” Earlier on December 20, the president dissolved Parliament and called snap polls on April 30 and May 10. However, two months later, Chief Justice Rana-led Constitutional Bench on February 23 overturned the decision and reinstated the House of Representatives.

The composition of the Constitutional Bench had been questioned during the hearing on the December 20 House dissolution. But doubts were dispelled after the bench restored the House.

Constitutional experts have criticised Oli and Bhandari for their complicity in trampling upon the Constitution.

Nepal plunged into a political crisis on December 20, last year after President Bhandari dissolved the House at the recommendation of Prime Minister Oli, amidst a tussle for power within the ruling Nepal Communist Party (NCP).

Oli's move to dissolve the House sparked protests from a large section of the NCP led by his rival Pushpa Kamal Dahal 'Prachanda'. PTI MRJ/NSA AKJ NSA