Constitutional bench to adjudicate House dissolution case

KATHMANDU, JANUARY 15

The constitutional bench of the Supreme Court led by Chief Justice Cholendra Shumsher JB Rana today ruled that cases field against the dissolution of the House of Representatives would be heard by the same bench continuously from Sunday.

The SC passed the order after hearing arguments of the 13 petitioners, who had challenged the dissolution of the HoR, and the defendants. The bench said the case could not be referred to a grand full bench as serious constitutional issues were to be settled.

Petitioners had argued that the case should be referred to an 11-member grand full bench or a larger bench as justices hearing the case would have to review two precedents set by 11-member benches of the Supreme Court in the 1990s.

Petitioners’ lawyer Senior Advocate Raman Kumar Shrestha said that on December 20 the Cabinet decided to dissolve the HoR, but the decision did not quote any article of the constitution, except saying that the government wanted to dissolve the HoR to seek two-thirds majority in order to amend the constitution. He said the President’s Office stated that the HoR was dissolved as per articles 76 (7) and 85 (1), but the government had not invoked those articles in its recommendation to dissolve the Lower House.

Shrestha urged the court to seal documents submitted by the defendants citing the risk of alteration by the government. He said the government had submitted the original file of the Cabinet decision related to the dissolution of the HoR to the Supreme Court on January 4 and it took the file back on January 7, saying it would resubmit it on January 12, but the government had yet to do so.

Shrestha said he had obtained a copy of the file that the government had submitted.

Attorney General Agni Prasad Kharel, who is defending the government in the case, told THT that Shrestha’s arguments were wrong because the prime minister clearly stated in his letter to the president that he was recommending dissolution of the HoR as per articles 76 (7) and 85(1).

Deputy Attorney General Padam Prasad Pandey told the court that as per constitutional provisions, any case referred by the CJ citing question of serious constitutional interpretation came under the jurisdiction of the constitutional bench and since all these petitions were referred to the constitutional bench by the single bench of CJ Rana, these petitions must be heard by the constitutional bench.

He said the government had invoked articles 76 (1), 76 (7), and 85 (1) of the constitution while dissolving the House, hence the case must be heard by the constitutional bench. He said the SC Rule 22 that provisioned the formation of a grand full bench did not entail formation of a grand full bench to hear HoR dissolution case.

One of the petitioners, Shashi Shrestha, cited media reports that SC justices had met the prime minister on January 10 and 11. He argued if such meetings had taken place then it was a case of breach of judges’ code of conduct.

The SC, meanwhile, issued a press release terming www.ratopati.com’s report headlined ‘Have the justices met the Prime Minister?’ and www.nepalkhabar.com’s report headlined ‘Four justices including constitutional bench member Sapana Pradhan Malla met prime minister’ false and misleading. The SC reminded media outlets that such misleading reports breached journalists’ code of conduct and relevant laws.

 

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