Tuesday, 28 September, 2021

All Eyes On Supreme Court

Narayan Upadhyay

As the nation's politics passes through many twists and turns, the Supreme Court (SC) has found itself in the thick of things, for it has been compelled to hear the House of Representatives (HoR) dissolution case for the second time within five months. The SC had on February 23, 2021 reinstated the House that had been dissolved on December 20, 2020. An intense tussle between the ruling and opposition parties saw the HoR dissolution again on May 22, sending the opposition in a scramble to file the petition for its reinstatement.
In their petition, the opposition leaders have also sought the apex court to declare their nominee as the next prime minister because they had given majority consent to the candidate- the Nepali Congress (NC) president. To substantiate their point, the majority of these leaders that included 146 HoR members from the NC, CPN- Maoist Centre, Khanal-Nepal faction of UML and Janata Samajbadi Party (JSP) were physically present at the Supreme Court to file a petition against the House dissolution.

This time around, after the opposition parties registered their petition for the revival of the Lower House, the Supreme Court faced an unexpected dilemma over the selection of the judges on the constitutional bench, which conducts the hearing on the House dissolution lawsuit. No sooner had the hearing on the petition started than the lawyers representing the opposition parties demanded that two judges of the constitutional bench be removed as they had a 'conflict of interest' considering the May 22 House dissolution.
These lawyers opposed the inclusion of judges Bam Kumar Shrestha and Tej Bahadur KC in the constitutional bench. Earlier, judge Shrestha was involved in a two-judge bench that had scrapped the registration of the Nepal Communist Party and had revived the CPN-UML and the Maoist Centre. The verdict had raised many eyebrows in the country and Shrestha's bench drew criticism for nullifying the CPN, which was not demanded by the petitioner, who had only requested the court to give back the CPN to him. The petitioner had not sought the ditching of the unification of the two parties - the UML and Maoist-Centre.
Similarly, the SC bench of judge KC was engaged in quashing Maoist Centre chair Pushpa Kamal Dahal Prachanda's review petition of the same court verdict- the discarding of the CPN and revival of the UML and the Maoist - Centre. These two verdicts, according to the opposition lawyers, rendered the two judges unfit to be included in the constitutional bench that would hear the House dissolution lawsuit.
The demand of the indignation of the opposition lawyers was addressed after the Chief Justice was compelled to revise the constitutional bench in which he included judges on a seniority basis. Before doing this, the Chief Justice had convened the full-court of the SC judges to solicit consultation on the redrafting of the bench comprising the senior judges.
However, the passage for reconstituting the constitutional bench for the second time was fraught with troubles. The lawyers representing the government had demanded the two judges of the reconstituted bench - Dipak Kumar Karki and Ananda Mohan Bhattarai - be ejected from the bench as the two had their conflict of interest in the same case. One of the government lawyers even maintained that all 11 SC judges are ineligible for hearing the litigation. The appeal of the government's lawyers saw the Chief Justice reprimanding them. He even warned the lawyers would be slapped with contempt of the court case if they declined to withdraw their demand of ejecting judges Karki and Bhattarai from the newly formed bench.
The formation of the new constitutional bench has indeed consumed a lot of time of the Supreme Court, the ultimate place for interpreting the constitution of the country. In the meantime, the decision to reconstitute the constitutional bench based on the seniority of the judges deserves our praise. Chief Justice Cholendra Shumsher Rana had come under tremendous pressure after he had picked the judges of his liking, raising concerns about the neutrality of the bench. The inclusion of the senior judges must have come as a relief to the petitioners and many who have a keen interest in the House dissolution case. Selecting judges on their seniority has, without doubt, lent much-needed credibility to the constitutional bench and the Supreme Court.
Legal experts say the reconstituted bench now requires dealing with the HoR dissolution issue by focusing mainly on Article 76 and its 1, 2, 3, 4, and 5 sub-clauses of the constitution. In its precedence-setting verdict earlier, the five-member constitutional bench, headed by the Chief Justice, had annulled the government's move of terminating the House on December 20, 2020.
Then the bench had ruled that the constitution did not offer any scope to dissolve the HoR without working out all the existing alternatives through the utilisation of provisions of Article 76 and its sub-clauses, especially 76 (5), as per which any HoR member can become prime minister if he/she demonstrates majority support from the HoR members as they don't need the backing of political parties in the House.

Independence of judiciary
When the President disbanded the House for the second time on the recommendation of the government, the opposition lawyers contended the House could not explore all options as per Article 76 and its sub-clauses to form a new government. The lawyers and the constitutional bench will plead in details on the provisions spelt out in Article 76 and its sub-clauses before it delivers the final verdict on the issue.
At last, the ruling from the Supreme Court's bench comprising senior justices is expected to settle the present uncertainty. All affected parties and people must positively take the court verdict by respecting the probity and neutrality of the judges on the constitutional bench. The five-member bench of senior-most judges having years of experience and reputation will be successful in protecting the people's faith in our constitution by delivering a verdict that would be widely accepted and respected. It will also be a milestone in maintaining the independence of the judiciary in the nation.

(Upadhyay is Deputy Executive Editor of The Rising Nepal. nara.upadhyay@gmail.com)