KATHMANDU, Oct 9: At a time when the constitutional bench of the Supreme Court (SC) has failed to carry out its functions smoothly, a serious question has been raised over its relevance.
Misunderstandings between the Chief Justice and the senior-most justice at the SC, disputes in the judiciary, internal politics and disputes in the Judicial Council have been creating problem in the smooth functioning of the constitutional bench which was created as the sole mechanism to settle constitutional disputes.
“The constitutional bench has failed to deliver,” constitutional law expert and senior advocate Purnaman Shakya told Republica, “There is no alternative to dissolving it as soon as possible and forming a separate constitutional court.”
According to Article 137 (1) of the constitution, there shall be a constitutional bench under the leadership of Chief Justice in order to settle constitutional disputes. The other four judges of the bench would be nominated by the Chief Justice based on the recommendation of the Judicial Council.
The constitutional bench is supposed to look into the disputes between the center and provinces, between provinces and disputes between provinces and local units.
If any case has a constitutional dispute, the Chief Justice or any bench can refer it to the constitutional bench considering the gravity of the constitutional dispute.
Senior advocate Shakya also said that the constitutional bench has become the victim of internal disputes of the Supreme Court and the Judicial Council.
“There is no other alternative but to set up a separate constitutional court, disconnecting the relation with the Supreme Court and the Judicial Council,” Shakaya said, adding, “There is no other alternative but to form a constitutional court and appoint the judges there by the Constitutional Council independently.”
“There should be separate judges for deciding constitutional disputes,” Shakya said, adding, “These judges of the constitutional court should not look into land disputes, criminal cases and other cases.”
Currently, there are 223 cases pending at the constitutional bench. “Most of them were registered during the time of the interim constitution but they have now been referred to the constitutional bench,” Nagendra Kalakheti, co-spokesperson for SC, said.
The cases against the then CPN (Maoist) leader Balkrishna Dhungel and former Chief Justice Khil Raj Regmi's appointment as the chief executive were delayed for years.
Even when the new constitution was being drafted, there was a sharp dispute in national politics and legal circle over the formation of the constitutional court. So, the constitutional bench was formed according to the recommendation of the apex court judges.
“We had predicted that the constitutional bench would not be practical for us,” senior advocate Tikaram Bhattarai said, adding, “Now it has been proven. So, the formation of a separate constitutional court by dissolving the constitutional bench would be the best alternative.”