Lawyers of the defendants in the ongoing House dissolution case started presenting their arguments before the Constitutional Bench of the Supreme Court from Monday.

Attorney General Ramesh Badal, who was the first to plead on behalf of the defendants, said the House dissolution case does not fall under the jurisdiction of the Constitutional Bench.

“This case does not fall under the jurisdiction of the Constitutional Bench. As per Article 137, for this case to come to the bench there must be a conflict between the federal and provincial governments or the federal and local governments. Unfortunately, there is no such dispute hence this case should not proceed,” Badal argued. “They have put the court in confusion. The Chief Justice could have referred the case to the Constitutional Bench as per 137(3), but that did not happen.”

He argued that the bench must tell whether the case followed the right procedure.

“Although we have accepted the jurisdiction [of the bench] the legal provisions don't. This is something beyond the jurisdiction of the bench. Petitioners brought the case to trick the court,” Badal said. “Since the process of registration of the petitions was flawed, the bench’s decision will not have validity. So the petitions brought to trick the court must be annulled.”

Article 137(2) states that the bench formed under clause (1) shall originally try and settle the following cases, in addition to the petitions filed in accordance with clause (1) of Article 133:

(a) Disputes relating to jurisdiction between the federation and a province, between provinces, between a province and a local unit and between local units,

(b) Disputes relating to election to members of the Federal Parliament or Provincial Assembly and matters relating to disqualification of a member of the Federal Parliament or of the Provincial Assembly.

During the previous hearing, Chief Justice Cholendra Shumsher Rana had forwarded all the petitions to the Constitutional Bench as per Article 137(3) but this time the petition of 146 members of the House of Representatives including Congress President Sher Bahadur Deuba was registered directly at the Constitutional Bench.

Article 137 (3) states that notwithstanding anything contained in Article 133 if it appears that any case sub judice in the Supreme Court involves a question of serious constitutional interpretation, the Chief Justice may appoint such case to be tried by the bench under clause (1).

But the petitioners’ lawyers including senior advocate Chandra Kanta Gyawali have claimed that the issue of jurisdiction of the Constitutional Bench was resolved during the first House dissolution of December 20.

Attorney General Badal countering senior advocate Satish Krishna Kharel, who had said on Sunday that a single person cannot become prime minister utilising all the provisions of the constitution, argued that Oli did no wrong in staking claim to government formation under all provisions of the constitution.

“Janata Samajbadi Party did not support a government proposed as per Article 76(3) but it supported the one under Article 76(5). Oli had paved the way for forming a new government after realising that the existing government did not have the confidence of parliament,” Badal told the bench. “If Deuba, Janata Samajbadi Party and Maoists had wished they could have laid claim to form a government as per Article 76(2). How can they say Oli cannot lay claim to forming a government as per Article 76(5)?”

During the hearing, Justice Ishwar Khatiwada had asked Badal what was the basis for the President to accept or reject the claims for prime minister.

“The basis was the support of the political parties,” Badal replied.

He said the difference between Article 76(2) and Article 76(5) was that any member of the House can claim prime ministership as per clause 76(5) with the support of independent members of the parliament like the one practised in the Gandaki Province. “In Gandaki [province], Krishna Chandra Nepali became chief minister as per Article 168(5) with the support of independent assembly member Rajib Gurung,” he said.

But the petitioners’ lawyers had pleaded that Article 76(5) was meant for individual lawmakers and not political parties and that it was incorporated in the constitution with a view to giving as long a life as possible to the House, given the past experiences of frequent dissolutions whenever the prime minister wanted.

He claimed that the President had rejected the claims of both Prime Minister Oli and Sher Bahadur Deuba because they were suspicious, controversial and untrustworthy.

Later Chief Justice Rana had also asked a similar question to Badal.

“What is the basis for the President to accept or reject a claim for prime minister?” Rana asked. “Should the president examine whether a claim is suspicious, controversial or not trustworthy? If yes, what should be the basis for it?.”

Badal did not respond.

Attorney General Badal said the Bench did not object when the petitioners’ lawyers made disapproving comments giving examples that presidents and the prime ministers were murdered in the past and kept on berating them.

While pleading on behalf of the petitioners, senior advocate Raman Shrestha had said even kings used to be beheaded in the past.

Badal claimed that the parties wanted to establish a party-less system when they said party whip would not apply for party lawmakers supporting a prime ministerial candidate under Article 76(5). “How can someone elected from one party support the prime ministerial bid of an opposition party lawmaker? And how can they plead to the court to endorse their decision?” he argued.

He said the law does not allow lawmakers to support an opposition party candidate for prime minister.

“What will happen if a member of the House of Representatives elected from a particular party goes on to support an opposition party lawmaker for prime minister—will it mean the lawmaker doesn’t belong to any party or he has abandoned his party, or what?” he asked. “Do they have legal standing in a court of law?”

On May 21 Deuba had laid claim for prime minister with the signature of 26 lawmakers of the Madhav Nepal-led faction of the CPN-UML and 12 lawmakers of the Upendra Yadav-led faction of the Janata Samajbadi Party.

Earlier, Prime Minister Oli had expressed his disappointment over the poor performance by the government defence team led by the then Attorney General Agni Sapkota during the court hearings on the December 20 House dissolution.

Kharel later resigned his post and was replaced by Badal.

“It’s not appropriate for a lawmaker elected on a particular party’s ticket to say they do not recognize the party,” Badal told the bench. “If their demands are implemented many articles of the constitution will become inactive.”

Badal also claimed that it was Oli’s compulsion to dissolve parliament and the court should not enter into the political issue.

The three defendants— President’s office, the Prime Minister and the Speaker have been allotted a total of 15 hours but the Attorney General argued for 3.5 hours and provided only one hour to the Speaker’s lawyers on Monday.