The Constitutional Bench will not sit on Wednesday after judges expressed opposition, accusing Chief Justice Manoj Kumar Sharma of arbitrarily forming the bench.
Chief Justice Sharma had assigned a bench comprising himself, Sapana Pradhan Malla, Hari Phuyal, Nahakul Subedi, and Abdul Aziz Musalman on Wednesday. While a lottery system is used to assign hearings to other benches of the Supreme Court, the chief justice's presence is mandatory on the Constitutional Bench, making it customary for the chief justice to assign the hearings themselves.
Before the Constitutional Bench was scheduled to sit, while gathered in the joint chamber, Justice Hari Phuyal questioned Chief Justice Sharma as to why he had been excluded from the benches until now and included on Wednesday.
"There might be a rationale behind why you did not include me on previous days and why you included me today. Therefore, I have no issue with the fact that I wasn't included previously. However, let's discuss about things moving forward," a Supreme Court source quoted him as saying.
"Justice Hari said that either the Constitutional Bench must be assigned on the basis of seniority or an alternative policy like the lottery system must be established. He said that he will not sit on a bench formed arbitrarily," the Supreme Court source reported. "His argument was that the Constitutional Bench must operate under rules. He said that this is not a personal matter, but a matter of an independent judiciary, and therefore rules are required."
According to the source, he argued that since the Constitutional Bench is a vital institution of the state, its formation must be predictable and based on a clearly defined process.
The source said that other senior justices agreed with Justice Phuyal's stance.
However, Chief Justice Sharma disagreed with the condition set by Justice Phuyal that they would only sit on the bench if a discussion was initiated to ensure a transparent process for the formation of the Constitutional Bench.
The justices reportedly proposed: “If the chief justice says, ‘I will take this matter up for discussion; let’s sit today for now,’ then let the bench sit today.”
According to the sources, the chief justice replied, "No, there will be no discussion on this matter, I will form [the bench] as I see fit."
When Justice Phuyal insisted that he would not sit on the bench under those circumstances, Chief Justice Sharma called court staff and instructed them to announce that the bench would not sit on Wednesday, the source said.
During the tenure of former chief justice Cholendra Shumsher Rana, Supreme Court justices had boycotted hearings citing that irregularities had increased due to the process of assigning hearings. They returned to the benches only after a lottery system was implemented for case allocation. However, former chief justice Rana did not return to the bench after that. At the time, the lottery system was not applied to the Constitutional Bench because the chief justice was required by law to sit on it.
For some time now, the Nepal Bar Association has been demanding that the lottery system be implemented for assigning hearings in the Constitutional Bench as well.
