Petitioners to press for grand full bench

KATHMANDU, JANUARY 12

Petitioners who have challenged the dissolution of the House of Representatives will seek formation of a grand full bench for the hearing of the case tomorrow when the constitutional bench led by Chief Justice Cholendra Shumsher JB Rana hears the case.

Lokendra Oli, one of the 13 petitioners, said they had already submitted a petition seeking formation of a grand full bench and their lawyers would plead before the constitutional bench in favour of the formation of a grand full bench.

Petitioners Harihar Dahal, Mithilesh Kumar Singh, and Tika Ram Bhattarai said since the apex court would have to review two precedents set by 11-member benches in the House dissolution cases in the 1990s, there was a need for forming at least an 11-member bench to hear the case. They also argued that the court had recently set a precedent by forming a full court (all justices’ bench) to decide the statute of limitation affected by coronavirus lockdown.

Dahal said the larger bench needed to be formed to hear the House dissolution case, as majority of the justices needed to take ownership of the apex court’s verdict.

He said it had been a rule in the apex court to form a larger bench, which sometimes was named special bench, to hear major constitutional cases.

Bhattarai said since Article 137 of the constitution that provisioned the formation of constitutional bench did not stipulate that House dissolution case should be heard by the constitutional bench, a grand full bench should be formed to hear the case. He said Article 137 stipulated that the constitutional bench should hear the case involving disputes between the tiers of the government, laws contradicting the constitution, and issues related to election. “But these petitions only seek nullification of the government’s unconstitutional order,” Bhattarai argued.

Senior Advocate Singh said the SC will have to review its two previous precedents set by 11-member benches in the House dissolution cases and hence it needed to form at least an 11-member bench or a larger bench.

“In this case, the SC will have to review its previous precedents or judge made laws. How can a five-member constitutional bench overrule the precedents set by 11-member bench?” he wondered.

Mithilesh Kumar Singh said the SC recently formed a grand full bench comprising all justices to decide a case involving the issue of coronavirus lockdown and its impact on litigants and those who could miss court deadlines.

On May 28, a grand full bench of the Supreme Court comprising 19 justices had ruled that the period between March 22 and the time when the lockdown would end should be considered zero period for those whose deadline for filing or contesting cases or joining court proceedings had lapsed.

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

Five amici curiae nominated by the Nepal Bar Association and Supreme Court Bar Association will also plead in the case.

 

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