A division bench of Justices Damodar Prasad Sharma and Rajendra Prasad Koirlala was divided over whether President Yadav´s move in sending a letter to Katawal to continue in his post was constitutional or not. [break]
Justice Sharma said the president´s move has raised a serious question and the case should be decided by a full bench of the SC.
"The president´s move to reinstate the then sacked army chief poses a serious legal question. It is an issue of public concern and should be settled by a full bench," Sharma said in his decision.
Sharma further said that the president´s move has raised a serious constitutional question and it is open to judicial consideration.
But Justice Koirala differed from what Sharma said. Koirala said the president´s move reinstating the army chief has already been settled with Katawal´s retirement.
- Case referred to full bench
- Prez move poses serious legal question and should be decided by full bench: Justice Sharma
- Writ has lost relevance, should be quashed: Justice Koirala
- They agree that prez has no privilege of legal immunity
- Court can entertain writ filed against prez
In Koirala´s opinion, the writ should be quashed on three grounds. First, the then army chief has retired and the writ has lost its relevance. Secondly, the Madhav Kumar Nepal-led government has revoked the decision of the erstwhile government to sack Katawal. And thirdly, a controversy should be resolved at the time it arises.
Justices Sharma and Koirala, however, agreed on four issues regarding the president´s move.
They agreed that anyone can file a writ at the SC questioning a decision or move by the president. "We share the opinion that a writ filed against the president in a matter of public concern can be taken up by the court," reads the verdict.
The justices also agreed that the president does not enjoy the privilege of legal immunity. They have similar opinion also on whether there is a need for legal and constitutional interpretation regarding the president´s decision to send a letter to block the government´s decision. They said there is need for constitutional interpretation of the president´s move.
They also came up with similar opinion about provisions in the interim constitution regarding relations between the president and the cabinet and agreed that there should be further interpretation of the law in this connection.
In May last year, President Yadav had blocked the Maoist-led government´s decision to sack then army chief Katawal through a letter. The president´s move had led the then government headed by Maoist Chairman Pushpa Kamal Dahal to step down.
The case will be heard by the SC full bench. The number of justices on the full bench would be decided by Chief Justice Ram Prasad Shrestha.
Nearly 50 lawyers have pleaded the case before the SC division bench.
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