Restructured constitutional bench fails to end courtroom drama on House dissolution

A courtroom drama unfolded at the Supreme Court today as soon as the newly constituted Constitutional Bench began its hearing on the writs filed against the May 22 dissolution of House of Representatives.

President Bidya Devi Bhandari had dissolved the House of Representatives (HoR) on May 22 and fixed general elections in November amid a worsening COVID-19 outbreak.

The decision was taken on the recommendation of the cabinet headed by caretaker Prime Minister Oli, whose December 2020 dissolution of parliament sparked weeks of protests and was reversed by the Supreme Court as unconstitutional in February.

Following the dissolution of HoR, as many as 30 writ petitions were filed in the Supreme Court challenging its constitutionality.

Chief Justice Cholendra Shumsher JB Rana then formed a five-member constitutional bench, including himself along with justices Dipak Kumar Karki, Dr Aanand Mohan Bhattarai, Tej Bahadur KC and Bam Kumar Shrestha, to hear the House dissolution cases.

The bench, however, landed controversy after petitioners challenging the House dissolution demanded that justices KC and Shrestha recuse themselves from the constitutional bench citing conflict of interest.

Shrestha was on the Supreme Court bench that scrapped the CPN-UML – CPN-Maoist Centre merger whereas KC was on the bench that rejected the review petition filed to challenge the decision of nullifying the merger.

The petitioners were of the view that the scrapping of UML-Maoist merger had eventually led to House dissolution.

KC and Shrestha, however, were insistent that there was no link between the merger nullification decision and House dissolution case and refused to opt out of the bench. This resulted in justices Deepak Kumar Karki and Anand Mohan Bhattarai opt out of the bench.

Earlier, when the House of Representatives was dissolved for the first time on December 20, Justice Hari Krishna Karki had recused himself from the constitutional bench after petitioners pointed out that he was appointed the attorney general by the KP Sharma Oli government before being nominated as Supreme Court justice.

Amid the furor, Chief Justice Rana on June 1 declared that a new constitutional bench would be formed on the basis of seniority on June 6.

Today, Chief Justice Rana appointed justices Deepak Kumar Karki, Mira Khadka, Ishwar Prasad Khatiwada and Ananda Mohan Bhattarai in the five-member bench formed under his chairmanship.

Justices Harikrishna Karki and Bishwambhar Prasad Shrestha have not been included in the bench despite their seniority because Shrestha is infected with COVID and in isolation whereas Karki’s reason is the same as before.

However, advocates including Raja Ram Ghimire and Gyanmani Nepal tabled a petition seeking a review on the new bench as soon as today’s hearing began. They have raised questions over the eligibility of 11 out of 21 justices at the Supreme Court.

It is important to note here that Raja Ram Ghimire has filed a writ petition demanding that KP Sharma Oli be appointed as the Prime Minister.

According to the agitating advocates, 11 justices including Anand Mohan Bhattarai — who is in the new bench — should not be hearing the writ petitions associated with the House dissolution case.

After the advocates raised questions over the justices, Chief Justice Rana asked them to withdraw the petition or face a contempt of court charge. He also asked them to have faith in the bench.

He added that none of the justices can bench the hearing if such a series of doubts is to continue.

“I ask you either to withdraw the petition or face a contempt of court charge,” Rana warned.

The hearing over the petitions against House dissolution resumed on Sunday with petitioners demanding an interim order to restore HoR.