Ineffective Constitutional Bench will hamper implementation of constitution and federalism, experts sayLegal experts say there is a need to create a separate constitutional court to deal with disputes.
The failure of the Constitutional Bench to meet regularly to settle the cases under its jurisdiction has been hampering the implementation of the constitution and federalism, experts say.
The Constitution of Nepal envisions the Constitution Bench to try and settle, among others, disputes relating to jurisdiction between the federal government and a province, between provinces, between provinces and local units and between Local levels.
But the bench, headed by the Chief Justice Cholendra Shumsher Rana, has not been meeting on a regular basis, largely due to a provision that calls for the mandatory presence of all its members.
As many as 174 cases are pending at the bench due to frequent postponement of meetings, and several times there has been a long gap between meetings because of a limited number of judges.
Constitutional experts say the bench is becoming ineffective as judges are usually busy, given the sheer number of cases the Supreme Court has.
As per the norm, the bench is supposed to sit twice a week—Wednesdays and Fridays.
Citing continuous hiccups and long gaps between meetings, the Judicial Council, which is also led by Chief Justice Rana, recently added six more members in the bench. The bench now has 11 members.
After being appointed at the helm of the Supreme Court, Chief Justice Rana had formed the bench with Justice Deepak Kumar Karki, Kedar Prasad Chalise, Meera Khadka and Hari Krishna Karki.
Rana, as the head of the Judicial Council, had recommended six Supreme Court justices to the bench on August 13 which he endorsed later. The newly inducted justices include Bishwombhar Prasad Shrestha, Ishwor Prasad Khatiwada, Ananda Mohan Bhattarai, Anil Kumar Sinha, Prakash Man Singh Raut and Sapana Pradhan Malla.
With the induction of six more members, the bench can now meet regularly as the justices in the panel can be in place of those who cannot attend meetings due to their assigned tasks in the court.
“With the increase in the number of justices in the Constitutional Bench, more cases are expected to be heard now,” said Bhadrakali Pokhrel, spokesperson of the Supreme Court.
The bench has adjudicated only 13 cases in the current fiscal year.
According to Pokhrel, there are still 174 pending cases.
The new arrangement could somehow lower the number of pending cases, but constitutional experts are still for a separate dedicated constitutional court to deal with the increasing number of cases related to disputes arising over constitution and federalism issues.
Senior advocates and constitutional experts Chandra Kanta Gyawali and Purna Man Shakya and former Supreme Court justice Balaram KC have long been advocating for a separate constitutional court instead of a bench in the apex court.
Former Supreme Court justice KC pointed out another defect in the 11-member Constitutional Bench.
“The bench cannot include experts for any particular case if the 11-member panel does not have one,” said KC. “This won’t help in imparting quality justice.”
According to Shakya, the Constitutional Bench must be filled with justices who have studied constitutional law and have a better understanding of constitutional issues.
“However, the bench has become like a traditional broader full bench,” said Shakya. “This does not work.”
According to experts, once formed, a separate constitutional court can have judges with specialisation on constitutional issues.
Delay in adjudicating cases by the Constitutional Bench could severely affect constitution implementation, according to Dipendra Jha, chief attorney of the Province 2 government.
“This, by extension, will hinder the implementation of federalism as well,” Jha told the Post.