The writ petition against the recommendation of the Chief Justice was filed on Monday itself. The order was given by the then Acting Chief Justice Sapana Pradhan Malla, but it was registered only on Wednesday.
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A writ petition against the recommendation made to the Chief Justice by amending the law related to the Constitutional Council through the ordinance was filed in the Supreme Court on Wednesday. Although the bench of the then Acting Chief Justice Sapana Pradhan Malla had issued an order to register the petition on Monday, it was registered only after the appointment of a new Chief Justice.
After the President issued the ordinance related to the Constitutional Council on April 22 on the recommendation of the Council of Ministers, the Council had recommended the then fourth-ranking judge Manoj Kumar Sharma as the Chief Justice. On April 25, senior advocate Dinesh Tripathi and advocate Premraj Silwal had approached the Supreme Court with a writ. But the Supreme Court had filed a writ petition. After that, they filed a petition against the bench. The Supreme Court had also ‘held’ that petition.
After the petition was not sent to the bench for a week, Silwal had filed a complaint with the secretariat of the then acting Chief Justice Sapna Pradhan Malla. Based on that complaint, Malla had issued a three-page order in the name of the Chief Registrar and Registrar to register the petition against the writ petition by 1 pm on Monday. But the order was not implemented.
Sharma was appointed as the Chief Justice on Tuesday after parliamentary hearing and approval through the 'fast track'. Advocate Silwal informed that his petition was registered with the permission of the Chief Registrar on Wednesday after Sharma came to the leadership of the court. According to him, the first presentation in it has been scheduled for 11 Jestha. Supreme Court spokesperson Arjun Koirala also confirmed that Advocate Silwal's petition was registered. He informed that Senior Advocate Tripathi has also been informed about the registration of the petition.
Rule 10 of the Supreme Court Rules provides for a petition to be filed in the bench if the court administration refuses to register. ‘A person who is dissatisfied with the order of the Chief Registrar or Registrar (not to register) may file a petition in the bench within seven days,’ the rules state. After the petition was not filed in the bench, petitioner Silwal had filed a complaint with the secretariat of the then Acting Chief Justice Malla.
The petition against the writ petition will now be filed in a single-judge bench next Monday. In that bench, the petitioners will argue why the decision to refuse registration should be nullified. The petition can be filed in any judge’s bench. The Supreme Court has a practice of determining the bench through a lottery process.
The single bench will decide whether to order the registration of the writ after hearing the arguments of the petitioner or to uphold the order refusing registration. There are precedents for a single bench to order registration and for upholding the administration's decision.
If the Supreme Court's decision is upheld, the petition will not proceed. If the single bench reverses the administration's decision and orders 'to register as it needs to go for judicial review', the writ will be registered in a constitutional bench comprising five judges. The constitutional bench will be headed by Chief Justice Manoj Kumar Sharma. In this case, he will have to hear the petition against him himself.
The constitutional bench will consist of judges appointed by Chief Justice Sharma. If the bench is formed on the basis of seniority, the judges will be Kumar Regmi, Hari Prasad Phuyal, Nahakul Subedi and Binod Sharma. Sapna Pradhan Malla, who is in the ranking after Sharma, and Til Prasad Shrestha, who is in the ranking after Subedi, are on leave. Chief Justice Sharma can also appoint four judges of his choice, regardless of seniority.
The Constitutional Court can either dismiss the writ or proceed with the judicial process and call the opponent for discussion with a written response.
