In its written clarification presented to the Supreme Court on June 17, the Office of the President had argued that the actions of the President cannot be subject to judicial review.

It said that as the President takes decisions based on the government’s recommendations or the role defined by the constitution, it cannot be reviewed by the judiciary.

However, the lawyers pleading on behalf of the writ petitioners challenging the May 21 dissolution of the House of Representatives on Friday argued that the President’s actions are very much open to judicial review.

On the third day of the hearing against the House dissolution case, advocate Tika Ram Bhattarai said the Office of the President presented unconstitutional arguments saying the President’s moves are above legal purview.

“Except for the issues the constitution clearly says cannot be reviewed, all others fall under the scope of judicial review,” said Bhattarai.

Bhattarai even claimed that if the President fails to perform the responsibility assigned by the constitution s/he can be impeached.

“The President cannot shirk her constitutional responsibilities. By refusing to appoint Nepali Congress President Sher Bahadur Deuba prime minister, the President failed to perform her constitutional responsibility,” he argued. “She cannot say, ‘I won’t appoint’. It was her responsibility to appoint Deuba who had the support of 149 lawmakers.”

Nepali Congress President Deuba on May 21 had presented his claim for the prime minister’s post with the signatures of 149 lawmakers of the dissolved House of Representatives. In addition to 61 lawmakers from the Nepali Congress, Deuba was supported by 49 from the Communist Party of Nepal (Maoist Centre), 26 from the Madhav Nepal faction of CPN-UML, 12 from the Upendra Yadav faction of Janata Samajbadi Party and one from the Rastriya Janamorcha.

As on the first and second days of the hearing, the lawyers of the plaintiffs on Friday focused their arguments on questioning the role of President Bidya Devi Bhandari and interpreting Article 76 (5) of the Constitution of Nepal.

“The constitution doesn’t allow the President to test the authenticity of the claims presented for the prime minister’s position,” said senior advocate Shree Hari Aryal. “Her role is to appoint a prime minister based on the claims; it’s the Parliament where the appointee needs to secure the trust vote.”

He claimed that the President had refused to appoint Deuba as prime minister with a mala fide intention to give continuity to KP Sharma Oli as prime minister.

Aryal said that even kings consulted experts and stakeholders before taking decisions on grave issues like House dissolution.

When prime minister Surya Bahadur Thapa had recommended dissolving the House of Representatives in 1998, King Birendra had refused to do so, after consulting the Supreme Court.

“The President could have held a discussion with the prime minister or used a third eye to review the matter. But she didn’t deem it necessary,” Aryal said. “She endorsed whatever the prime minister recommended.”

The advocates on Friday also said the President’s interpretation of Article 76 (5) was extra-constitutional as she gave the decision of the party equal weightage as that of the individual lawmakers.

They argued that as the Article was introduced to give individual lawmakers autonomy to decide on forming a government and the President had had no authority to entertain the claim by the prime minister, who presented the decisions of the CPN-UML and Janata Samajbadi Party.

While Deuba had presented the signatures of 149 members of the 275-member House of Representatives, Oli had staked his claim with his party’s decision of the support of its 121 lawmakers and the Janata Samajbadi Party’s support of its 32 lawmakers.

Former attorney general Mukti Pradhan, who is also a senior advocate, claimed that Oli didn’t have the authority to dissolve the House.

“Only a prime minister appointed as per Article 76 (5) can dissolve the House, after failing to get the trust vote,” he said. “However, Oli wasn’t the prime minister as per the Article.”

Oli on May 10 failed a vote of confidence as only 93 lawmakers of the dissolved House stood by him. When no other parties could cobble up a coalition government as per Article 76 (2), three days later President Bhandari appointed him prime minister of a minority government as per Article 76 (3) as the leader of the largest party in Parliament.

However, instead of seeking a trust vote in the lower house as mandated by the constitution, on May 20 Oli recommended that the President call for the formation of a new government on the basis of Article 76 (5).

Before the House dissolution, the President had invalidated the claims put forth by both Deuba and Oli saying that they were “insufficient”. Soon afterwards, the House was dissolved and midterm polls announced for November 13 and 20.

“The bench [Constitutional Bench] should issue an order to appoint Deuba as prime minister while also reinstating the lower house,” said Pradhan.

In its final verdict against the December 20 dissolution, the Constitutional Bench of the Supreme Court had said the lower house can only be dissolved after exhausting the four options for government formation envisioned by the constitution. Article 76 (1) allows formation of the government by the leader of the party that has a majority in the House, Article 76 (2) allows a coalition government, and Article 76 (3) allows the formation of a minority government by the leader of the largest party in the House. Article 76 (5) allows any lawmaker who can potentially prove a majority to lead a government.

With just a few of the 23 lawyers of the plaintiffs left to make arguments, lawyers advocating on behalf of the defendants will present their arguments starting Sunday.

Both sides presented their legal briefs to the Constitutional Bench along with their arguments on Friday.

The Office of the President, the Office of the Prime Minister and Council of Ministers, Prime Minister Oli and the Speaker of the dissolved House of Representatives Agni Sapkota are the defendants.

While Oli in his written clarification on June 17 said that the appointment of prime minister is a political issue and not a matter for the court to decide, the Speaker said that the dissolution was unconstitutional.