Monday, 12 April, 2021

Attorney General at odds with demand on extended full bench on HoR dissolution case


Kathmandu, Jan 13: Hearing has begun again in the Constitutional Bench today on writs filed at the Supreme Court against the dissolution of House of Representatives (HoR).

Senior advocates Krishna Prasad Bhandari, Harihar Dahal, Raman Kumar Shrestha, Hari Uprety, Dinesh Tripathi, Dr Chandrakanta Gyawali and Shambhu Thapa started the pleadings this morning on behalf of the writ petitioners, calling for hearing the case in extended full bench instead of the constitutional bench.

They argued that an extended full bench should conduct a hearing in this case as it would be difficult to adjudicate justice in the constitutional bench comprised of only five judges, calling for hearing and dispensation of justice by at least 11 judges, as in the previous similar cases.

When Chief Justice Cholendra Shumsher JBR, who is heading the constitutional court conducting the hearing, wanted to take the opinion of Attorney General Agni Prasad Kharel regarding the demand, the latter made it clear that he disagreed with the idea of conducting the hearing in the extended full bench.

Eleven of the 13 writ petitioners had on January 6 filed a supplementary application on their writs calling for conducting the hearings on the writs related to the HoR dissolution in the extended full bench.

The constitutional bench comprising Chief Justice Cholendra Shumsher JBR and Justices Hari Krishna Karki, Bishwombhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC had started hearing on January 6.

Justice Sapana Malla was today assigned to the post of Judge in the Constitutional Bench that is hearing the writs filed against the dissolution of the House of Representatives (HoR).

The post had fallen vacant after Justice Hari Krishna Karki recused from the position in the Constitutional Bench on moral ground as he had served as the Attorney General during the government headed by KP Sharma Oli before this.

It is said Karki recused himself from the Constitutional Bench after questions were raised over his role as the Attorney General in the previous KP Sharma Oli-led government.

The Constitutional Bench is hearing into the writs filed challenging the constitutionality of the dissolution of the House of Representatives. There is a dispute regarding whether the writs should be heard by the Constitutional Bench or in the extended full bench.

The constitutional bench had, after its first hearing on December 25, issued a show cause order in the name of the defendants - the President, the Office of the Prime Minister and Council of Ministers, and the Speaker of the House of Representatives, among other bodies, urging them to submit written answers including the reasons for the dissolution of the House of Representatives. It had also issued an order in the name of the Federal Parliament Secretariat requiring it to submit documents including the original register that showed the registration of a no-confidence proposal against the Prime Minister in the House of Representatives.

The written reply from all bodies has already been submitted to the court by January 3 through the Office of the Attorney General as per the court order.

Nepal Bar Association has sent senior advocate Badri Bahadur Karki, Satish Krishna Kharel and Bijay Kant Mainali while the Supreme Court Bar Association has recommended the names of senior advocates Purna Man Shakya and Geeta Pathak as amicus curiae as asked for by the court.

Fourteen writ petitions have been filed against the President's decision on December 20 of dissolving the House of Representatives on the recommendation of the Prime Minister. Advocate Prabesh KC had filed a case against this decision on behalf of the dissolved House of Representatives' members Dev Prasad Gurung, Krishna Bhakta Pokharel, Sashi Shrestha and Ram Kumari Jhankri. The writ petition has made the President, the Office of the

Prime Minister and Council of Ministers, Speaker, among others as the defendants.

In the writ petition, the outgoing lawmakers had argued that they have been deprived of their right to represent the people for five years with the decision of the President to dissolve the House of Representatives on the recommendation of the Prime Minister. They have demanded that this decision should be scrapped.

Similarly, senior advocate Dinesh Tripathi and advocates Shalikram Sapkota, Gyanendra Raj Aran, Samrit Kharel, Kanchan Krishna Neupane, Santosh Bhandari, Deepak Rai, Amita Gautam, Lokendra Bahadur KC, Kamal Bahadur Khatri, Maniram Upadhyaya, Tulasi Simkhada and Achyut Prasad Kharel had also lodged a writ against the House dissolution.

In the writ filed by them, the law practitioners have sought a certiorari order from the court scrapping, in accordance with the Article 133, Sub Article 2 and 3 of the Constitution of Nepal, the Prime Minister's recommendation of dissolving the House of Representatives and all the works related to the dissolution of the HoR by the President based on the PM's recommendation and all the works carried out on the basis of that recommendation. They have also sought an appropriate order from the court for carrying out the works of the House of Representatives.