Wednesday Oct 5, 2022
Wednesday Oct 5, 2022

Hearing on HoR dissolution continued; prerogative of benches under dispute

Advs from govt side favour constitutional bench prerogative

2021 Jan 15, 20:50, Kathmandu
A view of the building of the Supreme Court of Nepal. Photo courtesy: Sushan Dhital

Hearing was held at the Constitutional Bench today as well on the writ petitions filed at the Supreme Court challenging the constitutionality of the dissolution of the House of Representatives.

Senior advocate Bishnu Bhattari, pleading at the outset on behalf of the defendant, Government of Nepal, said that the hearing could not take place in other benches as the law provides that it is the prerogative of the constitutional court to interpret matters related to the constitution and as it is the final arbiter on such issues.

On behalf of the Prime Minister, he made it clear that a topic related to the provision of the constitution could not be transferred to an extended full bench as the Constitution of Nepal needs to be abided by.

"It can be taken to the extended full bench only after a conclusion is drawn in the constitutional bench that the bench cannot interpret the constitution," he said.

Senior advocate Dr Surendra Bhandari contended that the Constitution of Nepal has made provision for a constitutional bench on matters of serious constitutional topics and 66 countries had this provision of the constitutional court to interpret the constitution.

Advocate Ramesh Badal said that the Constitution of Nepal, 1991 did not have the provision that the constitutional court should hear the cases of serious constitutional issues but the present Constitution has made the provision for a constitutional bench. Hence, the constitutional provision should be followed.

"The context should be taken into consideration. It is not that the previous legal system should be followed now. A case can be transferred to another bench only in the condition that it clashes with the existing constitution. The constitutional bench cannot shirk away from this now," he argued.

Advocate Bijaya Mishra argued that the constitutional bench has itself taken the form of extended bench. Stating that there is a provision that cases of other benches could be raised in the constitutional bench, but cases of the constitutional bench shall not be transferred to elsewhere, deputy Attorney General Padam Pandey said that there is not any legal provision that cases of the constitutional bench shall not be transferred to the extended full bench.

Advocate Lab Kumar Mainali on behalf of defendant Speaker stressed the need for conduct hearing in view of the seriousness of the issue and its far-sighted impact.

The hearing on the jurisdiction of the court is ongoing. Hearing on the constitutional bench comprising Chief Justice Cholendra Shamsher JB Rana and Justices Sapana Pradhan Malla, Bishowambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC is underway. However, disputes on whether the case should be transferred to the constitutional bench or to the extended full bench have not been resolved yet.

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