Questions on the composition of the Constitutional Bench were raised once again on Sunday during the hearing on the constitutionality of the dissolution of the House of Representatives on the night of May 21-22.

Lawyers pleading the case of the 146 lawmakers of the dissolved House even argued that the presence of Chief Justice Cholendra Shumsher Rana on the bench raises questions about its impartiality.

“There is a way out and you can stay on leave,” senior advocate Shambhu Thapa told Chief Justice Rana.

On Sunday, the second day of the hearings by the Constitutional Bench, Rana had asked the lawyers arguing on behalf of the petitioners if his presence was also under scrutiny after they had questioned the inclusion of Justices Bam Kumar Shrestha and Tej Bahadur KC on the Constitutional Bench.

On Friday, advocate Govinda Bandi had questioned the seating of Justice Shrestha in the five-member bench formed and led by the chief justice saying that his ‘controversial’ decision to disband the Nepal Communist Party (NCP) without the petitioner demanding it was the main reason behind the dissolution of the House for the second time.

A two-member bench comprising Shrestha and Kumar Regmi had invalidated the May 2017 merger of the CPN-UML and the Communist Party of Nepal (Maoist Centre) to form the Nepal Communist Party (NCP), with (NCP) within brackets, although Rishiram Kattel had only petitioned the court not to let the new party use that name as a political party by the name of Nepal Communist Party had been registered in his name.

Lawyers on Sunday also questioned the presence of Tej Bahadur KC on the bench as he had quashed the petition to review the decision of the division bench to split the ruling party.

In response, Chief Justice Rana said the lawyers had no right to choose which justices should constitute the Constitutional Bench.

“You don’t have the right to choose justices. Hearing is done based on facts, the law, and procedures,” said Chief Justice Rana while countering the objections of the lawyers.

But as the lawyers including senior advocates Badri Bahadur Karki, Mahadev Yadav, Mukti Pradhan, Raman Shrestha, Harihar Dahal and Thapa continued to raise questions about the presence of two justices saying they cannot continue on the bench when their presence is questioned by lawyers, as is the practice elsewhere, including in India, Chief Justice Rana agreed to take a decision on the bench’s composition on Monday.

Earlier, during the hearing on Sunday, Rana had asked if the lawyers were asking him to recuse himself and allow other justices to deliver justice.

“It would be better if you thought about it yourself,” senior advocate Badri Bahadur Karki told Rana in reply.

Former Supreme Court justice Balaram KC welcomed the decision to review the composition of the Constitutional Bench saying that there are examples of India’s chief justice changing the composition of a bench when questions were raised and such practice would only increase the faith of people in the judiciary.

Lawyers of the 146 lawmakers have been pressing the chief justice to change the composition as they doubt that the justices will express their opinions freely and independently as Rana has selected justices who would agree with decisions on the constitutionality of the dissolution of the House.

“We have been pressing for a change in the composition,” one of the senior advocates pleading on behalf of the 146 lawmakers told the Post. “Even four former chief justices came out with a statement that it was a mockery of the rule of law following the selection of the justices on the Constitutional Bench.”

Other lawyers point out that Rana used his discretion in picking the justices for the Constitutional Bench.

“There wouldn’t have been any problem if the justices had been selected on the basis of seniority but the chief justice did not do so even though he is within his rights to pick justices,” said senior advocate Sabita Bhandari Baral, who is not involved in the writ petitions. “This is what created the present problem.”

According to her, people have been questioning why the chief justice always chooses justice KC when the court is considering controversial cases.

Of the five justices on the present Constitutional Bench, KC is the only one, besides Rana, who was also on the bench that reinstated the House of Representatives on February 23 following its dissolution on December 20.

“He also quashed the review petition of Pushpa Kamal Dahal on the March 7 decision to revive the CPN-UML and the Maoist Centre to their pre-merger states,” she told the Post.

Of the 146 lawmakers of the dissolved House who are the petitioners, 72 were affected by the decisions of justices Shrestha and KC. Therefore, it would be better if they recused themselves from the bench, senior advocate Raman Shrestha argued on Sunday.

During the hearing of the December 20 House dissolution case too, the composition of the Constitutional Bench had been changed after questions were raised over the inclusion of Justice Hari Krishna Karki as he had served as the attorney general when KP Sharma Oli was prime minister in 2015.

“He had recused himself though the question then was not as serious compared to the one raised today,” said Bhandari. “So it would be better if they recused themselves.”

Attorney General Ramesh Badal, representing the government, objected to the call of the senior advocates saying if the three justices cannot look into this case over doubts about their impartiality, then the court cannot look into any case in which the prime minister is the defendant.

Badal also argued there was no relation between the case of Rishi Kattel and the current case of House dissolution.

While the decision on the composition of the Constitutional Bench is being reviewed by the chief justice, KC, the former justice, feels that the issue is also about the faith in the country’s judicial system.

“There is no doubt that the chief justice is the master of the roster and has discretionary power to select justices but the important thing is that treatment can only follow after proper diagnosis of the illness,” KC told the Post.

“People have already lost faith in the President and the prime minister and the only hope they have is from the judiciary. But if such questions are raised against the integrity of justices, how will our system function?”

“The chief justice must not take these questions negatively because they are raised to correct the judiciary,” KC said. “The Supreme Court should call its full bench for a retrospect of today’s incident [of questions over justices] and brainstorm why public faith in the judiciary has been declining.”
https://kathmandupost.com/national/2021/05/31/lawyers-continue-to-question-composition-of-bench-examining-house-dissolution