Constitutional bench in limbo as Supreme Court struggles over formation amid disagreements and boycotts

Nepal’s constitutional bench remains inactive because the Supreme Court has not agreed on how its four accompanying justices should be chosen. The dispute concerns whether the chief justice may select them alone, whether seniority should guide selection, or whether a lottery should be used.

The problem became clear on October 7, when Justice Hari Prasad Phuyal said he could not sit on the bench formed by Chief Justice Manoj Kumar Sharma. Proceedings were suspended. After the Dashain vacation, Sharma did not form the bench on Wednesday. He also did not participate in the regular lottery for allocating other cases.

The deadlock continues partly because several justices are absent or on leave. Senior-most Justice Sapana Pradhan Malla and Justice Abdul Aziz Musalman were absent Wednesday. Sharma says consultations are continuing and expects the bench to resume after the Tihar holidays, but other justices remain concerned.

The constitutional bench is a specialised division within Nepal’s Supreme Court. Article 137 of the Constitution created it after the 2015 constitution replaced an earlier special-bench arrangement. Its purpose is to handle disputes requiring direct interpretation of the constitution, rather than ordinary legal claims.

The bench decides critical questions involving constitutional interpretation and state governance. It has five justices, including the chief justice. The bench first convened on December 8, 2015, marking the start of this separate constitutional-dispute mechanism.

Its work matters because constitutional cases can affect the meaning of state powers and the operation of government institutions. Unlike regular Supreme Court cases, these matters are assigned to a specially composed bench. That makes disagreements over its formation especially serious: without the bench, constitutional disputes cannot proceed through this designated forum.

Nepal’s constitutional bench has five members in total. The chief justice is automatically included, then designates four additional Supreme Court justices. The Judicial Council recommends a roster of 10 justices, and the chief justice chooses the four from that list.

The current roster includes Chief Justice Manoj Kumar Sharma and justices Sapana Pradhan Malla, Kumar Regmi, Hari Prasad Phuyal, Nahakul Subedi, Saranga Subedi, Abdul Aziz Musalman, Mahesh Sharma Poudel, Tek Prasad Dhungana, and Sunil Kumar Pokharel. This is different from regular benches, where cases are assigned through a lottery system.

The constitution does not clearly explain how the chief justice should make the four selections. It does not specify the role of seniority, rotation, or another selection standard. That gap has made bench formation controversial and produced repeated disputes over whether the chief justice’s choices are neutral.

The boycott reflects a deeper disagreement about fairness and authority. Critics accuse Chief Justice Manoj Kumar Sharma of bypassing established practices and choosing sympathetic justices for particular constitutional cases. They argue that the current method can influence which judges hear important disputes.

The conflict sharpened after Sharma formed the bench on October 7 and Justice Hari Prasad Phuyal refused to sit. A later constitutional-bench hearing was boycotted. Earlier disputes under former Chief Justice Cholendra Shumsher Rana also involved accusations of handpicking preferred justices, making the present clash part of a longer pattern.

Justices are divided over the remedy. Most favour extending the lottery system to the constitutional bench. Others say the constitution expressly gives the chief justice power to designate four members, so a full-court decision cannot legally remove that authority. The disagreement has left the bench unable to function.

When this mandatory bench cannot be formed, constitutional disputes cannot be heard by the specialised forum assigned to them. The immediate result is suspension and uncertainty. The article reports that proceedings stopped after Justice Hari Prasad Phuyal declined to sit, and the bench did not resume after the Dashain vacation.

The mechanism behind the disruption is the bench’s required composition. It must have five justices, including the chief justice, but disagreement over the four selections prevents that composition from stabilising. Absences have added difficulty: senior-most Justice Sapana Pradhan Malla and Justice Abdul Aziz Musalman were away on Wednesday.

The wider Supreme Court also faces internal strain. Serving justices have expressed concern, while the court continues regular work through nine joint benches and two single benches. Chief Justice Sharma says consultations are ongoing and expects a restart after Tihar, but the article leaves the timing uncertain.

Supreme Court justices have identified three possible ways to choose the four members who sit with the chief justice. The first gives the chief justice sole authority to designate them. The second assigns members according to seniority. The third uses a lottery, as regular Supreme Court benches do.

Each option reflects a different balance between constitutional text and institutional fairness. The constitution says the chief justice must designate the four accompanying justices. However, it does not state whether seniority, rotation, or another principle should guide those choices. That silence has allowed competing interpretations.

The current majority among justices favours a lottery for the constitutional bench as well. Others argue that a full-court resolution cannot legally curtail the chief justice’s express power. Insiders say the three options are before Chief Justice Sharma, with a solution likely to come from two of them.

Constitutions create specialised courts or benches because constitutional disputes concern the basic rules of government, rights, and public authority. These cases often require focused interpretation rather than routine application of ordinary law. A dedicated bench can provide a consistent forum for resolving such disputes.

Nepal’s constitutional bench illustrates this design. Created under Article 137, it decides disputes about constitutional interpretation and state governance. Its five-justice structure separates these questions from regular litigation, while its position inside the Supreme Court gives judges an institutional role in applying constitutional limits.

This supports separation of powers by allowing an independent judicial body to examine whether government actions fit the constitution. Legislatures make laws and executives administer them, while courts interpret the governing rules in disputes. The source does not directly explain this general rationale, but it identifies Nepal’s bench as the specialised forum for constitutional disputes. Its current paralysis shows why a reliable formation process matters.