Almost half of Supreme Court (SC) justices have advised Chief Justice (CJ) Cholendra Shumsher Rana to send the the writ petitions filed against House dissolution by President Bidya Devi Bhandari on recommendation of the Cabinet to an extended full bench.
A SC source confided with Setopati that an emergency full court convened on Thursday after demise of former SC justice Baliram Kumar Prasad has advised to that regard. "The issue of hearing process on House dissolution was raised during the full court. A few justices suggested CJ Rana to conduct hearing by sending the case to an extended full bench as is the SC tradition as the case is related to interpretation of Constitution," the source said.
The source claimed that around eight to nine justices advising so include Justices Deepak Karki, Meera Khadka, Bishwambhar Shrestha, Ishwor Khatiwada, Ananda Mohan Bhattarai and Anil Kumar Sinha. There are 19 justices in the SC including CJ Rana.
Shrestha and Sinha are in the five-strong constitutional bench headed by CJ Rana that is currently hearing the case.
Justice Hari Krishna Karki, who recused himself from the constitutional bench on Wednesday after conflict of interest questions were raised pointing how he was appointed attorney general by Oli when he first became PM five years ago, opined that the case should be heard by constitutional bench. Junior justices remained silent.
The justices, according to the source, pointed how the SC had heard cases about the previous four House dissolution through an extended full bench and stressed that hearing of the current case by an extended full bench would be more meaningful than doing so by a five-strong constitutional bench.
Reminding that the constitutional bench is mandated to hear cases about disputes between provinces, contravening federal and provincial laws and election related cases, they pointed that there will be no obstruction in sending the case to an extended full bench as cases related to interpretation of the Constitution are also heard by other benches.
"Justices Deepak Karki, Bhattarai and Khatiwada pointed how legal professionals and even commoners are demanding the case be sent to an extended full bench and reminded how the power of judiciary rests on the trust of people, and justice must not only be done but must also be seen to be done," the source added. "Around eight to nine justices including them were unanimous. Other justices did not speak much."
CJ Rana said that he will see what needs to be done after what happens in the next hearing on Wednesday.
Lawyers during the hearing on 13 petitions filed against the House dissolution on Wednesday had submitted a supplementary application demanding an extended full bench. Senior advocate Raman Shrestha and Dinesh Tripathi had raised the issue even during their arguments.
The constitutional bench after the last hearing on December 25 had ordered the government and other defendants to submit written justification via the Office of the Attorney General before January 3.
The defendants including Prime Minister KP Sharma Oli have already submitted written response to the show-cause order issued by the constitutional bench hearing the 13 writ petitions against House dissolution by President Bidya Devi Bhandari on recommendation of PM Oli on December 20. Each defendant has sent separate replies to all 13 petitioners through the Office of the Attorney General.
PM Oli has said he dissolved the House as a few leaders tried to undermine the government. Claiming that there was no chance of formation of another government, he has argued that House dissolution is a political issue and claimed that the court in the past also did not enter into political issues.
The response sent by the President's Office has also claimed that the House has been dissolved in accordance to the Constitution, precedents of the past and international practices.
Speaker Agni Sapkota, on the other hand, has claimed in his reply that there was option of forming another government and pointed there is a clear provision that prohibits House dissolution until there is chance of forming government. He has stated that the House dissolution is against the spirit and values of the Constitution and called it an intervention on the institution of people's elected representatives.
Similarly, recommendation for HoR dissolution and original copy of decision on it were also sought from the President's Office, and Office of the Prime Minister and Council of Ministers by the SC on December 25. The original documents on registration of no-confidence motion were sought from the federal parliament secretariat.
The documents about name and number of lawmakers in the House just before its dissolution were also sought from the federal parliament secretariat. The SC had also asked for three senior advocates of Nepal Bar Association and two from the SC Bar in amicus curiae which has already been provided to assist the Apex Court.
A total of 13 writ petitions were filed against HoR dissolution by President Bidya Devi Bhandari on recommendation of Prime Minister KP Sharma Oli on December 20.
Advocate Prabesh KC had filed a writ petition against HoR dissolution on behalf of members of the dissolved House Dev Prasad Gurung, Krishna Bhakta Pokharel, Sashi Shrestha and Ram Kumari Jhankri. In the petition, he had demanded the recommendation be scrapped, arguing it violated House's right to continue for five years.
The Constitution does not have clear provision about House dissolution. Article 85(1) of the Constitution states 'Except when dissolved earlier, the term of House of Representatives shall be five years.'
Some constitutional experts argue that the Constitution envisions House dissolution due to the use of term 'dissolved earlier'. But others argue that the provision has been kept for the situation of inability to choose the PM.
Article 76(7) states 'If the Prime Minister appointed according to clause (5) fails to get the vote of confidence or if any member fails to be appointed as Prime Minister, the President shall, on the recommendation of Prime Minister, dissolve the House of Representatives and fix a date to conduct another election within six months.'