Nepal | April 19, 2019

‘Rules governing process of constitutional bench flawed’

Ram Kumar Kamat

Kathmandu, November 4

Lawyers have said that rules governing the process of constitutional bench of the Supreme Court should be changed to expedite adjudication of cases being considered by the bench.

According to an annual report of the Supreme Court, in the 2016/17 fiscal, 203 cases were filed in the constitutional bench, but no cases were adjudicated in the same fiscal.

According to Nepal Law Society, in the fiscal 2017/18 there are 247 cases sub judice in the constitutional bench, but so far only 20 cases have been adjudicated.

Executive Director of Nepal Law Society Krishna Man Pradhan said that the rules governing the constitutional bench should be changed to allow the chief justice to name five justices out of a roster of 10 justices for   constitutional bench every day when constitutional bench is formed instead of the existing rule that has formed a permanent constitutional bench comprising five justices led by the CJ.

Pradhan said the current system was flawed because the bench cannot hear cases even if one member of the bench is absent for any reason. “Constitutional bench should be formed the same day because other benches are also formed the same day,” Pradhan argued. He said the constitutional council had the power to adjudicate cases as stated in per Article 137 (2) (a) and (2) (b). As per these provisions,  constitutional bench hears cases involving constitutional issues, disputes regarding powers among the three tiers of governments and issues of election involving members of the federal Parliament and provincial  assemblies, and  qualifications of the members of these two bodies.

Pradhan, however, said Article 137 (3) allowed the chief justice to refer any other case involving serious constitutional issues to the constitutional bench. “This constitutional provision does not serve the purpose because any case involving company or contract issues may also get referred to the constitutional bench and the adjudication of the cases could be delayed which could harm the interest of one party of the case,” he argued.

If any other case can be referred to constitutional bench, it should be done only after the majority of justices, who have been named in the roster for constitutional bench, decide to send those cases to the constitutional bench, Pradhan argued.

Senior Advocate Surendra Kumar Mahto, however, said that if the constitutional bench was delaying adjudication of cases, it was not because of any constitutional ambiguity but because the constitutional bench was not hearing cases regularly. Currently, the SC forms constitutional bench twice a week but since August it has not been able to form constitutional bench.  Mahto said if the constitutional provision governing the formation of constitutional bench had to be changed, then the constitution would have to be amended which would not be easy.

“But the rule governing the proceedings of the constitutional bench can be changed by the Supreme Court, saying that chief justice can form constitutional bench even when five out of three justices of the constitutional bench are present and they can adjudicate cases if there is unanimous opinion,” he said, and added that unanimity should not be required to pass orders such as show cause orders and orders to procure case files or evidence.

Chief Justice Om Prakash Mishra said the constitutional bench could not adjudicate cases in last one year due to non-formation of the bench during the time when Sushila Karki was the CJ.

He said constitutional bench would regularly hear cases after Tihar festival.  “I do not think that there is need for structural changes to remedy the current situation. We have started forming constitutional bench twice a week and if we can continue this, that will help deliver justice in time,” he said and added that the bench had allocated half hour time to both parties of the case, but that had not been strictly enforced.

“Constitutional issues involve serious legal questions which entails more time to adjudicate. Often lawyers representing cases take more than the allocated time, delaying the adjudication of  cases,” he argued.

 


A version of this article appears in print on November 05, 2018 of The Himalayan Times.


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