Petitioners plead for grand full bench

KATHMANDU, JANUARY 13

Lawyers representing the petitioners who have challenged the dissolution of the House of Representatives pleaded before the five-member constitutional bench led by Chief Justice Cholendra Shumsher JB Rana that the case must be referred to a grand full bench as it would have to review the precedents sent by 11-member benches of the Supreme Court in the 1990s.

Senior advocate Raman Kumar Shrestha argued that since all precedents set by the SC, including during Panchayat regime, continued to be precedents for courts of Nepal, the precedents set by the SC in House dissolution cases on two occasions in the 1990s must be reviewed.

He said those precedents were set by 11-member benches and reviewing those precedents by a five-member bench would be against legal principles.

Shrestha said the decision to dissolve the House had raised factual and constitutional questions which should be heard only by a grand full bench.

He said the grand full bench should decide whether Prime Minister KP Sharma Oli-led government was a majority government as per 76 (1) or coalition government as per Article 76 (2) of the constitution. “How can we buy the PM’s argument that his government was formed under Article 76 (1)? Why did the Samajbadi Party-Nepal leave the coalition government and withdraw its support to Oli,” Shrestha asked.

“There are multiple articles of the constitution that need to be analysed, apart from comparing the constitution of 1990 with the current constitution.” He said the grand full bench should decide whether or not the constitution gave the PM right to dissolve the House.

“As per Article 137 (2), the constitutional court can settle only three issues — disputes related to jurisdiction of three tiers of the government, matters related to election or disqualification of members of the federal Parliament or provincial assemblies, and any case sub judice at the Supreme Court referred to the constitutional bench by the CJ,” he said.

Senior Advocate Shambhu Thapa also pleaded for the formation of an 11-member or a larger bench to settle the House dissolution case.

Meanwhile, Attorney General Agni Prasad Kharel and PM’s lawyer Senior Advocate Sushil Panta registered a petition rejecting the petitioners’ demand for the formation of a grand full bench. They argued that the constitutional bench, which had already issued a show cause notice in the case, was competent to hear the case.

The constitutional bench will hear arguments of defendants on Friday and will pass an order on whether or not a grand full bench should be formed to hear the case.

Today, Chief Justice Rana replaced Justice Hari Krishna Karki, who had recused himself from the case, with Justice Sapana Pradhan Malla on the constitutional bench.

Lawyers had raised the issue of conflict of interest for Justice Karki in the case since he was appointed attorney general in 2015 when Oli was the PM.

The SC has listed the House dissolution case for continuous hearing.

 

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