On Wednesday, Chief Justice Raut formed a constitutional bench comprising of the senior-most judge Sapna Pradhan Malla, judges Nahkul Subedi, Til Prasad Shrestha and Vinod Sharma from the 'roster'. Malla is second, Subedi seventh, Shrestha eighth and ninth ranking judges.
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The dispute that has been going on for about a month and a half in the constitutional bench formation process has been resolved on Wednesday. Consensus has been reached on the method of forming the constitutional bench by selecting the Chief Justice from the 'roster' of 10 judges made by the Judicial Council.
On Wednesday, Chief Justice Raut formed a constitutional bench consisting of the senior-most judge Sapna Pradhan Malla, judges Nahkul Subedi, Til Prasad Shrestha and Vinod Sharma from the 'roster'. Malla is second, Subedi seventh, Shrestha eighth and ninth ranking judges.
Earlier, the then Chief Justice Cholendrashamsher Jabara formed a bench four and a half years ago by selecting judges for the hearing of the writ regarding the dissolution of the House of Representatives through the 'pick and choose' method. After strong opposition, he again started forming the bench on the basis of seniority.
Chief Justice Raut, who was in the minority when deciding on the appointment of 52 officers of the constitutional body on June 18, brought the issue of applying the Gola process to the constitution of the constitutional bench in the annual review meeting on the action plan of the Supreme Court on July 12. Two days later on July 14, Chief Justice Raut called a full court and moved the proposal. But 10 judges were seen against the proposal.
The constitutional bench is a special bench of the Supreme Court that hears matters that are in conflict with the constitution. In Article 137 (3) of the Constitution, it is mentioned that a constitutional bench will be constituted if a case under consideration in the Supreme Court involves a question of serious constitutional interpretation. Only special cases that conflict with the constitution regarding union, state and local levels, elections and fundamental rights are registered in this bench.
The constitutional bench sits on Wednesdays and Fridays for judicial practice. Constitutional bench could not be formed after 25 June due to the dispute over the formation process. Chief Justice Raut claimed that there was no dispute in the constitution bench process before.
He said that he constituted the bench by using the authority given to him by Article 137 (1) of the Constitution. In Article 137 (1) of the Constitution, there is a provision that "(in the constitutional bench) there shall be the Chief Justice and four other judges designated by the Chief Justice on the recommendation of the Judicial Council".
Chief Justice Raut's comment, which was discussed a little more in the public media, was about making the functioning of the constitutional bench more effective and transparent along with other benches of the Supreme Court. In the meantime, he argued that due to the work of the Judicial Council including the appointment and transfer of judges, he did not have free time and the constitutional bench could not be formed.
The former judge of the Supreme Court and experts in constitutional law commented that it is good to resolve the dispute on the formation of the constitutional bench. Former Chief Justice Harikrishna Karki said that since the Constitution says that the Chief Justice shall appoint a constitutional bench, it is necessary to dispute it.
Constitutional law expert and senior advocate Chandrakant Gyawali mentioned that the Chief Justice can form a constitutional bench by choosing from the 'roster' of judges. "On the basis of subject experts, it should be practiced to keep the best and senior judges from among the roster," he said.
That controversy of bench formation
After Prime Minister KP Sharma Oli recommended the dissolution of the House of Representatives on 5 January 2077, a writ was filed against it in the Supreme Court. The then Chief Justice Cholendrashamsher Jabara selected a judge from a 'roster' of 14 and formed a constitutional bench on 10th December to hear it.
Judges Harikrishna Karki, Vishwambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC were on the bench along with Jabra. Being the first payee, a show cause order was issued that day. For the second time on 22 December, Jabara constituted a bench with the same judges. In the meantime, discussions began that Jabara had formed a bench considering the possibility of three in favor and two in opposition. Jabara had started to be accused of 'collusion' with Prime Minister Oli.
Lawyers questioned Judge Karki on the constitutional bench. At some point, he left the courtroom after the lawyer argued that he could not hear the case because he was the attorney general of Oli. Then, on 29th December, Sapna Pradhan Malla was replaced by Karki in the constitutional bench. It ruled that the House of Representatives will be dissolved on February 11.
Prime Minister Oli dissolved the House of Representatives for the second time on 7th June 2078. Majority of MPs along with Congress President Sher Bahadur Deuba went to the Supreme Court against dissolution. The then Chief Justice Jabara adopted the 'pick and choose' style in the formation of the bench that time as well.
Jabara kept Deepak Kumar Karki, Anand Mohan Bhattarai, Tej Bahadur KC and Bam Kumar Shrestha along with him in the constitutional bench appointed on 24th June. Rumors spread that the majority of Jabra, KC and Shrestha would approve the dissolution of the House of Representatives.
After that, the lawyers questioned that Shrestha should not sit on the bench because he had given a verdict on the CPN dispute. But Shrestha and KC insisted that they would stay on the bench. Then Karki and Bhattarai expressed their separate opinion that they could not live with them.
As the case was not going to be heard due to the controversy, the Supreme Court bar and the senior judges of the Supreme Court opened the barrier of the bench. Jabara agreed to assign the bench on the basis of seniority. On 23rd June 2078, Jabara formed a new bench, in which KC and Shrestha left and Meera Khadka and Ishwar Prasad Khatiwada were appointed according to seniority. After that, the constitutional bench was formed according to the order of seniority.
