Arguments centre on if court can appoint Deuba prime ministerChief justice asks whether it will be the right thing for the bench to pick prime minister as demanded by petitioners, as hearing on House dissolution continues.
Three days after the dissolution of the House of Representatives, the opposition alliance on May 24 filed a petition at the Supreme Court demanding that the House be restored and Sher Bahadur Deuba, president of the Nepali Congress, be appointed the prime minister.
As many as 146 members of the dissolved lower house, including 23 from Prime Minister KP Sharma Oli’s CPN-UML, had filed the petition.
Congress party’s 61, Communist Party of Nepal (Maoist Centre)’s 49 and Janata Samajbadi Party’s 12 lawmakers from the dissolved House also signed the petition.
They argue that since Deuba had provided the signatures of 149 lawmakers to President Bidya Devi Bhandari to lay claim to the post of prime minister on May 21, the Congress president should be appointed prime minister. Oli too had presented his own claim, saying that he had the backing of 153 lawmakers.
President Bhandari, however, rejected both claims. Subsequently Oli dissolved the House and the President endorsed.
During Sunday’s hearing, arguments revolved around whether the court can appoint an individual as prime minister as demanded by the petitioners.
While arguing on behalf of Speaker Agni Sapkota, one of the defendants, advocate Megh Raj Pokharel said that the court should correct the unconstitutional move by the President of rejecting Deuba’s claim, thereby appointing the Congress leader as prime minister.
Chief Justice Cholendra Shumsher Rana, who is presiding over the Constitutional Bench hearing the case, however, asked if the court can appoint someone holding a majority as prime minister, if Article 76 (5) allows the court to do so and if such an order would be constitutional.
“There’s an argument that since 146 lawmakers [from the dissolved House] are present before the court, the bench should authenticate [direct to appoint prime minister] the claim. Will it be a right practice for the court [to pass an order to appoint a prime minister]?” asked Rana.
While experts on constitutional matters maintain that the House dissolution was unconstitutional, they also seem to be perplexed by the opposition alliance’s demand that the court appoint Deuba as prime minister.
The President had invoked Article 76 (5) at the behest of Oli, who skipped the constitutionally-mandated process of seeking a vote of confidence after being appointed prime minister under Article 76 (3) following his May 10 failure to win a confidence vote in the House.
Legal experts say Article 76 (5) should have come into play automatically on two conditions—after Oli resigned or after he failed to win the vote of confidence necessitated by Article 76 (4).
President Bhandari, however, endorsed all the recommendations made by Oli and then rejected Deuba’s claims, which according to experts, is tantamount to robbing the Parliament of its authority.
Rana on Sunday also asked if the court runs the risk of making an unconstitutional move if it carries forward the process of appointing someone as prime minister.
After lawyers representing Sapkota completed their arguments, lawyers arguing on behalf of the plaintiffs were given an opportunity to respond to the defendants.
Before their turn, Justice Ishwar Prasad Khatiwada, referring to statements from the defendants, also asked similar questions to the plaintiffs’ lawyers. He also asked how constitutional it would be for the court to decide the prime minister, as the constitution has prescribed clear provisions.
The Constitution of Nepal authorises the President to appoint the prime minister and the legislature tests if s/he has the majority to continue as prime minister.
Constitutional experts who have closely followed the hearing process say a wrong precedent would be set if the court passed an order to appoint Deuba as prime minister. According to them, appointing the prime minister isn’t the jurisdiction of the judiciary.
“Appointment of the prime minister is purely a political issue. The court should stay away from this,” Bipin Adhikari, former dean at Kathmandu University School of Law, told the Post. “It can test the constitutionality of the President’s decision to reject the claims for the prime ministerial post. It should refrain from directly declaring someone as prime minister.”
Adhikari said he has not heard of any such practice in any democratic country where a court has passed an order to appoint someone prime minister.
According to Adhikari, the court, however, can show the direction through its verdict.
“If it finds that the House dissolution lacked any constitutional basis, it can pass an order asking the authorities to restore it,” Adhikari told the Post. “It can explain how there still was a possibility of the House giving an alternative government. It can also say there was only one contender for the post of prime minister as Oli had already declared that there was no way he could garner a majority.”
Experts on constitutional matters as well as plaintiffs’ lawyers are of the view that the President should have allowed the House to test if Deuba had a majority after appointing him prime minister. According to them, by not letting the House play its role, the President undermined Parliament.
Advocate Mohan Acharya, who specialises on constitutional law, says it would be better if the Constitutional Bench said the President should ask the lower house to test if someone commands a majority, if she had any confusion, and make an appointment accordingly.
“I think the bench wouldn’t directly pass an order to appoint Deuba as prime minister,” Acharya told the Post. “There is the need for a prudent verdict which gives due respect to Parliament and does not disrespect the Office of the President.”
Presenting his arguments on behalf of Sapkota on Sunday, senior advocate Shyam Kharel said the President must have stopped Oli from laying claim to the prime ministerial post as per Article 76 (5), as he had admitted that there was no situation for him to win the confidence vote in the House under Article 76 (4).
“Oli was not eligible to make a claim for the post of prime minister without going through the vote of confidence process which is compulsory as per the constitution,” said Kharel.
Senior advocate Upendra Kesari Neupane, who was defending Sapkota, said on Sunday that Oli’s claim for the prime ministerial position was just an attempt to obstruct the appointment of Deuba.
“Deuba’s claim was valid,” said Neupane. “The President should appoint him prime minister.”