Kathmandu, October 28
The constitutional bench of the Supreme Court has not heard cases for weeks.
SC Co-spokesperson Nagendra Kalakheti said the constitutional bench would conduct hearings after Tihar when Justice Deepak Kumar Karki returned from leave. As per the rule, the constitutional bench cannot hear cases if any member of the five-member bench is absent.
There are 223 cases in the constitutional bench that comprises Chief Justice Om Prakash Mishra and four senior justices — Deepak Raj Joshee, Cholendra Shamsher JB Rana, Deepak Kumar Karki and Kedar Prasad Chalise.
A source said the constitutional bench had not been able to conduct hearings because justices of the bench were not willing to sit on the panel with Justice Deepak Raj Joshee after he was rejected by the Parliamentary Hearing Committee for the post of chief justice on August 3.
Stalled hearings of the constitutional bench have led to the debate whether the bench ought to be restructured or whether a separate constitutional court should be formed to adjudicate constitutional cases.
Senior Advocate Chandra Kanta Gyawali said as the three tiers of government were implementing federal laws and policies, there were chances of their laws contradicting the constitution or clashing with the jurisdiction of other governments. Hence, there should be a separate constitutional court to handle such cases. “The constitutional bench had quashed most of the cases it adjudicated and when it did entertain some cases, the quality of verdicts was very low,” he said.
Former SC justice Girish Chandra Lal and senior advocate Surendra Kumar Mahto, however, said the chief justice should have the power to assign alternative member to the constitutional bench in case of a member’s absence. “We need not look for an alternative to the constitutional bench because no other bench can be as impartial,” Lal said. “The judiciary is independent and whenever Nepal’s judiciary has faced any challenge, people have supported its independence, which is a good thing,” he argued.
Mahto said lack of efficacy of the constitutional bench was not enough ground to argue in favour of a constitutional court. He said political parties could appoint judges of the constitutional court on the basis of political quota and this could adversely impact adjudication of constitutional cases.
“But if the quality of justice delivered by the constitutional bench was not excellent, then we could think of forming a constitutional court,” he added.
A source said the SC had issued a mandamus writ telling the government to form constitutional bench through a collegium whereby the chief justice could recommend other justices whenever the need arose. “If a constitutional court is formed to settle constitutional cases, it may kill the Supreme Court,” the source added.
A version of this article appears in print on October 29, 2018 of The Himalayan Times.