Senior advocate Shambhu Thapa has advised Chief Justice (CJ) Cholendra Shumsher Rana to take leave of absence.
Lawyers pleading on behalf of the petitioners have been protesting against presence of Justices Bam Kumar Shrestha and Tej Bahadur KC in the constitutional bench hearing the petitions related to the House dissolution.
Making his arguments on Sunday, Thapa questioned inclusion of Shrestha who invalidated unification of CPN in the bench and pointed that there is practice of justices recusing themselves when questions are raised about them. "This situation has arisen due to that verdict about CPN. Petitioners Madhav Kumar Nepal and Jhala Nath Khanal and the prime minister who dissolved the House are in the same party," Thapa added. "There are examples of the justices recusing themselves when there is dispute."
CJ Rana then reminded that he had also heard the case about House dissolution in recent past. "What is your opinion about me?" CJ Rana asked.
Thapa replied, "Your honor can take leave of absence."
Other lawyers pleading on behalf of petitioners including Govinda Bandi, Mahadev Yadav, Badri Bahadur Karki and Harihar Dahal also raised questions about presence of Shrestha who invalidated unification of CPN.
"Both the justices (Shrestha and Tej Bahadur KC) have been related to the case of CPN and the earlier case of dissolution. Questions have been raised about conflict of interest," senior advocate Karki stated pointing at international examples of recusal of disputed justices.
When CJ Rana asked Karki to also comment about his presence in the bench, Karki replied that the Constitution allows him to sit on the constitutional bench. "Has the law granted immunity to me? You may as well raise similar questions about me," CJ Rana said sarcastically.
Karki commented that questions have been raised about the CJ's morality while closing his arguments. "Do I not have morality?" CJ Rana countered immediately.
"That is for your honor to consider," Karki quipped.
The Supreme Court (SC) is continuing hearing of the petitions against the House dissolution on Sunday after it could not be completed on Friday.
Questions were raised about presence of Justice Bam Kumar Shrestha in the constitutional bench even during the hearing on Friday.
Chief Justice (CJ) Cholendra Shumsher Rana included Justices Deepak Kumar Karki, Ananda Mohan Bhattarai, Tej Bahadur KC and Bam Kumar Shrestha in the five-strong constitutional bench that he headed.
Shrestha was part of the joint bench also including Kumar Regmi that invalidated the unification of CPN on March 7 reinstating CPN-UML and CPN (Maoist Center) to the state before their unification.
Advocate Govinda Bandi, arguing on behalf of Nepali Congress (NC) President Sher Bahadur Deuba who filed a petition with support of 146 lawmakers, pointed at the verdict of the joint bench that invalidated unification of CPN in the case related to just the name of the unified party and argued that Shrestha should not be in the constitutional bench.
CJ Rana earlier on Friday announced the constitutional bench to hear the petitions against House dissolution.
KC is the only justice to have been repeated by CJ Rana from the constitutional bench that reinstated the House dissolved on December 20, 2020.
CJ Rana on December 25 had constituted the constitutional bench comprising himself and Justices Hari Krishna Karki, Bishwambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC after President Bidya Devi Bhandari dissolved the House on recommendation of Prime Minister (PM) KP Sharma Oli on December 20, 2020.
CJ Rana then included Justice Sapana Pradhan Malla in place of Justice Hari Krishna Karki, who was attorney general when Oli first became PM five years ago, after Karki recused himself from the case.
The bench including Malla, who was elected to the First Constituent Assembly by the then CPN-UML before she was appointed to the Supreme Court (SC), had unanimously reinstated the House on February 23.
"The statement recommended by prime minister on December 20 and issued by the president after endorsement has been revoked in a way that it is constitutionally and legally void as it is unconstitutional since there is no pre-existing constitutional condition of the prime minister of majority formed in accordance to the Article 76(1) dissolving the House as per Article 76(7)," CJ Rana had said reading the verdict.
The SC in its verdict while reinstating the House also explained that the Article 76(7) can be exercised to dissolve the House only after completing the processes mentioned in earlier clauses of the Article 76.
CJ Rana on Thursday sent 19 petitions related to the second House dissolution to the constitutional bench after preliminary hearing on the petitions. The constitutional bench he announced on Friday will now hear all the petitions related to the House dissolution.
A total of 30 petitions were registered demanding House reinstatement including four demanding that KP Sharma Oli be appointed prime minister (PM) if the House is restored.
The 11 petitions registered to be heard by the Constitutional bench include the one filed by 146 lawmakers demanding Nepali Congress (NC) President Sher Bahadur Deuba be appointed PM.
Deuba reached the SC Monday afternoon accompanied by CPN (Maoist Center) Chairman Pushpa Kamal Dahal, CPN-UML leader Madhav Kumar Nepal and Janata Samajwadi Party (JSP) Chairman Upendra Yadav to register the petition backed by signatures of 146 lawmakers.
The 146 lawmakers all reached the Apex Court to authenticate their signatures to register the petition. That was the first time that majority lawmakers have turned up at the SC premises demanding formation of government. The staffers at the Apex Court took cognizance of the fact and could be seen capturing the historic moment in the camera.
The petition also demands revocation of the decision of President Bidya Devi Bhandari to dissolve the House and announce election, election programs be stopped, and order to immediately call the House session to ensure that the budget is brought on the day stipulated in the Constitution.
The lawmakers also demand that they not be punished for supporting Deuba for PM as per Article 76(5) of the Constitution.
NC President Deuba had reached the Shital Niwas with list of 149 House of Representatives (HoR) members including 26 lawmakers from the Khanal-Nepal faction of UML, 12 of the Yadav-Bhattarai faction of JSP and one from Rashtriya Janamorcha May 21 staking claim for formation of government.
But KP Sharma Oli reached the Shital Niwas before Deuba and staked claim for the government falsely claiming that he has support of 153 lawmakers including 121 CPN-UML lawmakers and 32 of Janata Samajwadi Party (JSP) just a day after telling President Bhandari to go for formation of new government in accordance to Article 76(5) of the Constitution pointing he does not have numbers to pass the floor test.
Oli had repeated that he did not opt for floor test as he does not have majority during his press conference with editors of media outlets that was broadcast live across the country less than a couple of hours before staking claim with President Bhandari saying he has support of 153 lawmakers.
But President Bhandari did not appoint Deuba as the PM pointing at the false claims of Oli.
Issuing a notice just before midnight, she reasoned that Oli cannot be appointed PM as 26 lawmakers of CPN-UML and 12 of Janata Samajwadi Party (JSP) that he included in his claim to contend that he has support of 153 House of Representatives (HoR) members have signed in support of Deuba.
She, meanwhile, argued that Deuba cannot be appointed as UML Chairman and parliamentary party leader Oli wrote to not recognize signatures of 26 UML lawmakers who have supported another candidate when one's own parliamentary party leader has staked claim and will be punished for indiscipline in a way that they will not even remain HoR member, and JSP Chairman Mahantha Thakur and parliamentary party leader Rajendra Mahato also wrote to not recognize signatures of 12 JSP lawmakers saying they have signed against the dignity of the party.
Calling an emergency Cabinet meeting just minutes after President Bhandari said that none of Oli and Deuba can be appointed the next PM, Oli recommended President Bhandari to dissolve the House and hold the election in two stages on November 12 and 19.
President Bhandari then issued a statement in the wee hours of Saturday to dissolve the House and announce the next election as per recommendation of the Cabinet.
The opposition parties have jointly moved the SC on Monday demanding Deuba be appointed PM.
All the 149 lawmakers apart from Gokarna Bista, Pavitra Niraula Kharel, Raj Bahadur Buda and Ganesh Pahadi who were among 26 of the Khanal-Nepal faction to sign in support of Deuba on Friday have signed on the petition while Kalila Khatun, who hadn't signed on Friday, has signed today.
The lawmakers from Khanal-Nepal faction who have signed on the petition registered wit the SC include Birodh Khatiwada, Narayan Khatiwada, Jeevan Ram Shrestha, Ghanshyam Bhusal, Som Prasad Pandey, Krishna Lal Maharjan, Jhapat Rawal, Nira Devi Jairu, Sarala Kumari Yadav, Kalyani Khadka, Laxmi Chaudhary, Madhav Kumar Nepal, Jhala Nath Khanal, Bhim Rawal, Kalila Khatun, Ram Kumari Jhakri, Pushpa Karna Kayastha, Bhawani Prasad Khapung, Yagya Sunuwar, Surendra Pandey, Mukunda Neupane, Met Mani Chaudhary and Deepak Prakash Bhatta.
The strength of HoR before it was dissolved was 271 after Maoist Center expelled four lawmakers who joined CPN-UML after the Supreme Court (SC) invalidated unification of UML and Maoist Center on March 7.
UML currently had 121 lawmakers including those of the Khanal-Nepal faction, NC 63 (but two are suspended), Maoist Center has 49 (excluding Speaker), JSP 34 (including two suspended) and three lawmakers are independent.
The parties had to muster support of 136 lawmakers for majority.