The Supreme Court's Constitutional Bench is hearing the case against Sushila Karki's interim government, formed on the strength of the Gen-G movement, and the dissolution of the House of Representatives recommended by that government.

The Constitution has given the jurisdiction to hear serious constitutional disputes to a Constitutional Bench consisting of five judges including the Chief Justice. Under this jurisdiction granted by the Constitution, the Supreme Court had registered 16 writ petitions that reached the Supreme Court on Asoj 11 and thereafter. 

The Supreme Court had registered the dissolution of the House of Representatives and the formation of the government as serious constitutional disputes directly in the Constitutional Bench. According to Supreme Court spokesperson Arjun Koirala, the first hearing has been scheduled for Wednesday in the Constitutional Bench. The 16 petitions registered by requesting the bench will be presented at once.

The Constitutional Bench had already decided the dispute related to the dissolution of the Parliament earlier, so this time too it has been registered directly in the Constitutional Bench. In 2077 and 2078, UML Chairman KP Sharma Oli had dissolved the House of Representatives twice. The dispute, however, reached the Constitutional Bench via a single bench. 

This time, the Litigation Branch of the Supreme Court had asked the writ petitioners to register the dispute directly in the Constitutional Bench. Accordingly, the writs registered are about to be heard.

What are the demands in the writs?

After the Supreme Court was burnt down during the protest on 24 Bhadra, the writ registration was opened from 28 Asoj. On the same day that the writ registration was opened, 10 writs were filed in the Supreme Court, saying that the appointment of the Prime Minister and the dissolution of Parliament were against the constitution.

After that, 6 more writs were registered. Premraj Silwal, Yubaraj Poudel, Kirtinath Sharma Poudel, Ayush Badal, Khadak Bahadur Shah, Abhas Pokharel, Ayush Bhandari, etc. were registered.

Three main demands have been put forward in all the writs. The writ claims that the decision taken by the first President Ram Chandra Poudel to form the government based on the mandate of the Gen-G movement is unconstitutional. The constitution has Article 76 as the formation of the government, but it is claimed that Sushila Karki was not made Prime Minister according to that article. It is demanded that it be annulled as President Poudel formed it in accordance with Article 61 of the Constitution.

Similarly, the second demand made in the writ is that the decision to dissolve the parliament made by the President on the recommendation of Prime Minister Karki of the interim government should be annulled and the parliament should be restored. The third demand is that the situation after the Genji movement should be addressed by the parliament.

The writ has made the President's Office, Sheetal Niwas, Prime Minister Karki and the Parliament Secretariat as defendants. Similarly, it has been claimed that the formation of the government is illegal as the Constitution itself prohibits the Chief Justice of the Supreme Court from holding any other position of profit except the Human Rights Commission.

The main demand in the writ is that the dissolution of the House of Representatives should be annulled by the order of the instigation as it is unconstitutional. The demand to issue a mandate to restore the parliament and form the government from within the House of Representatives has been made in all the writs.

What kind of constitution will the Constitutional Bench be formed?

Article 137 of the Constitution provides for the formation of a Constitutional Bench. 'There shall be a Constitutional Bench in the Supreme Court. Such a bench will consist of the Chief Justice and four other judges appointed by the Chief Justice on the recommendation of the Judicial Council.

The Constitution has given the Chief Justice the right to appoint four judges other than himself to sit on the bench. Looking at the judicial practice so far, constitutional benches have been formed in two models. The first model is the power of the Chief Justice, so he will be able to choose four judges from among those selected and on the roster of the constitutional bench in a 'pick and choose' style. Anyone can be included in this out of the 10 judges on the roster.

Similarly, the second option is to form a bench based on seniority. In this, a bench will be formed of judges in the seniority order starting from the senior judge. Both these practices have been used. Earlier, in both the dissolutions carried out by KP Sharma Oli, the then Chief Justice Cholendra Shamsher Rana had initially formed the bench in a 'pick and choose' style, which was controversial.

After the dispute, it was decided that the dissolution of the parliament would be nullified by forming a bench based on seniority. The roster of the constitutional bench includes senior judges Sapna Pradhan Malla, Kumar Regmi, Hari Prasad Phuyal, Manoj Kumar Sharma, Kumar Chudal, Nahakul Subedi, Til Prasad Shrestha, Binod Sharma, Sharanga Subedi and Abdul Aziz Musalman. It seems that if it is assigned based on priority, it will be possible to include Manoj Sharma.

What are the options?

Since the first hearing will be held on the 12th, it seems that there will be a debate in favor of requesting a written response rather than an interim order. It seems that the constitutional bench can give priority and request a written response. Since the Supreme Court has to decide this dispute soon, it seems that it can ask for a written response from the opponents by setting a time.

Similarly, it seems that ‘amicus curiae’ will also be requested from the Nepal Bar Association and the Supreme Bar. It seems that after all these orders, the bench can also set a time for the final hearing if it wants. The election date is set for 21 Falgun and since the Election Commission has to prepare for it, there is a possibility that the bench will set a specific time as the demand for a proper solution will be discussed during the debate so that there will be no obstacles. 

This is the practice in the past cases of dissolution of the House of Representatives, so it seems that it will happen this time too. Only then will the Supreme Court hold the final hearing. It seems that the Supreme Court can conclude the final hearing in this matter within two months at the latest and within one month at the earliest.

Here is the history of the dissolution of the Parliament

There have been ten cases in the history of Nepal so far in which the decision to dissolve the Parliament has been made. From 2017 to 2082 BS, various prime ministers had recommended such dissolution. Out of the recommendations made in this way, five dissolutions were implemented. 

The first dissolution on 1 Poush 2017 was implemented, and then the dissolution done by Girija Prasad Koirala was also implemented in 2051 BS. The dissolution done by Girija Prasad Koirala was also implemented in 2055 BS. The dissolution done by Sher Bahadur Deuba in 2059 BS was also implemented, but it was later restored due to the strength of the people's movement. 

Similarly, on 15 Jestha 2069, Baburam Bhattarai dissolved the first Constituent Assembly. The ninth dissolution took place on 8 Jestha 2078. The then Prime Minister KP Sharma Oli reinstated it after ruling that the dissolution done by Prime Minister KP Sharma Oli was unconstitutional.