Will SC form a larger full bench to settle the House dissolution case?

Published On: January 13, 2021 06:00 AM NPT By: Ananta Raj Luitel

KATHMANDU, Jan 12: Despite widespread demand for the formation of a larger full bench, there is no certainty that the Supreme Court will set up such a bench to look into the House of Representatives (HoR) dissolution case.

"Various quarters of the independent society and the writ petitioners have been demanding the formation of a larger full bench to look into the case but there is no certainty of it," a high ranking official at the Supreme Court told Republica.

According to him, the five-member constitutional bench led by Chief Justice (CJ) Cholendra SJB Rana will take a decision in this regard on Wednesday. Still there is no certainty as to who CJ Rana will choose in the vacant position after Justice Hari Krishna Karki left the constitutional bench amidst a controversy.

"The case has already been referred to the constitutional bench which has been looking into it since then. Therefore, its decision will be final on whether or not to transfer the case to a larger full bench," he added.

The apex court has scheduled the case for Wednesday at the constitutional bench.

Conducting initial hearings, a single bench of Chief Justice Rana had referred the case to the constitutional bench which has sought written clarifications from the government authorities — Office of the President, PM KP Oli, the Office of the Prime Minister and Council of Ministers, the House of Representatives and Speaker Agni Prasad Sapkota and others in this regard.

"Still there is no guarantee which bench will test the house dissolution case," constitutional law expert Dr Chandra Kanta Gyawali said, adding, "Though Article 137 is clear on testing some few cases by the constitutional bench, the house dissolution case does not clearly fall under its jurisdiction. Hence, the formation of a larger full bench will be suitable for this case."

According to Gyawali, there are some contradicting precedents of HoR dissolution by former PMs Girija Prasad Koirala, Manamohan Adhikari, Sher Bahadur Deuba and Surya Bahadur Thapa, so the apex court could form a larger bench to set a new precedent in this regard.

"If there is a need for overruling the already set precedents, it would be justified to set up a larger full bench to settle the HoR dissolution case," a petitioner, Advocate Kritinath Sharma argued. "Over    ruling the already set precedents would be convincing by a larger bench according to the judicial norms even though this matter carries grave constitutional and legal questions."

In a public speech recently, Prime Minister KP Oli, who dissolved the HOR some two weeks ago, reiterated that the constitutional bench is competent enough to settle the case and there is no need to set up a larger full bench in this regard.

In fact, the 2015 Constitution has introduced the concept of constitutional bench in order to settle rare constitutional disputes such as -- jurisdiction between the federation and a province, between provinces, between a province and a local unit and between local units, election to members of the Federal Parliament or provincial assemblies and matters relating to the disqualification of a member of the federal parliament or of the province assembly. So, there is a need to decide whether the HoR dissolution case falls under this category.

"If it does not fall under the constitutional bench, obviously this dispute may be referred to a larger full bench but it must be referred to such a larger bench by the constitutional bench itself."

In addition, if it appears that any case sub judice at the Supreme Court involves a question of serious constitutional interpretation, the CJ may refer such a case to be tried by the constitutional bench as per Article 137(3).

"I don't think that this issue will fall under the jurisdiction of any larger bench because it has already been referred to the constitutional bench by the CJ after holding the initial hearing," Government Joint Attorney Sanjeev Raj Regmi who is also the spokesperson of the Office of the Attorney General, opined. "If there are other questions to be settled, it may be referred to a larger full bench according to Rule 7(4) of the Constitutional Bench (Operation) Rules, 2017."

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