Bench sits idle as disputes simmer

- TIKA R PRADHAN, Kathmandu

Oct 17, 2018-

The seniority issue of Justice Deepak Raj Joshee has taken its toll on the activities of the judiciary, with the constitutional bench suffering the most.

Legal experts say this is largely due to Joshee’s place on the bench as senior most justice, which makes other justices “uncomfortable” to work. “Joshee’s issue has been affecting the constitutional bench,” said a senior advocate. The constitutional bench has been dysfunctional after the Parliamentary Hearing Committee on August 3 rejected Joshee as the chief justice candidate.

The constitutional bench at the Supreme Court is responsible for settling disputes between the federal and provincial governments and parliaments over their jurisdictions. Endorsement of the Provincial Police Act by Province 2 Assembly is the latest bone of contention between the provincial and federal governments. Federal ministers and the attorney general have already refuted the move claiming that the Act cannot be implemented.

The constitution mandates the apex court to form a five-member constitutional bench on the recommendation of the Judicial Council. When Joshee led the judiciary as the acting chief justice, he had incumbent Chief Justice Om Prakash Mishra and Justices Cholendra Shumsher Rana, Dipak Kumar Karki and Kedar Prasad Chalise as members.

With Mishra’s appointment as the chief justice, Joshee remains at the bench as the senior-most justice. This, according to top court sources, has created a tension in the judiciary. Since the Parliamentary Hearing Committee rejected Joshee on the ground of his dubious academic credentials and controversial hearings, questioning his capability to lead the judiciary, some of the justices at the apex court are not keen to have him on the bench.

The constitutional bench has 223 cases to handle and the list is growing. Even as Supreme Court Assistant Spokesperson Nagendra Kalakheti claims that the bench has been paralysed by the absence of its members, many legal experts claim that it was largely due to Joshee’s presence. Chief Justice Mishra has done nothing to make the bench functional.

Kalakheti said there is no need for forming a new bench as there are already five members in place. “Earlier, Joshee headed the bench. Now Mishra will lead it while Joshee remains a member of the bench as the senior most justice,” he added.

“There must be the presence of all five members for the bench to discuss any issue. In the absence of members, the bench has failed to convene for long.”

Amid this confusion, some legal experts argue that the constitutional bench should be replaced by a separate constitutional court. Since both the constitutional bench and the Judicial Council are headed by the chief justice and the senior most justice is a member of both the JC and the bench, there will be a conflict of interests, they said.

Article 137 of the constitution states that the constitutional bench shall try and settle disputes relating to jurisdiction between the Centre and a province, between provinces, between a province and a local level and between local governments and disputes relating to the election of members to the federal parliament or a provincial assembly and matters relating to disqualification of a lawmaker.

If any case sub judice in the Supreme Court involves a question of serious constitutional interpretation, the chief justice may refer such case to the bench.

Published: 17-10-2018 08:26

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