Court verdict raises serious moral question for President BhandariAs Supreme Court restores House, it says Head of State’s actions are subject to judicial review and that it is the judiciary’s responsibility to correct any unconstitutional moves.
In its written clarification presented to the Supreme Court on June 17 on the dissolution of the House of Representatives and the announcement of midterm elections in November, the Office of the President had argued that the President’s decisions cannot be subject to judicial review.
It said as the President performs his/her duties on the recommendation of the government and within set constitutional provisions, the Constitutional Bench cannot review the President’s decision.
The Office of the President was one of the defendants of the 30 writ petitions against the May 21 House dissolution.
However, while issuing its verdict on the writ petitions, the Constitutional Bench said that it becomes the responsibility of the Supreme Court to correct actions of the President when they do not adhere to the constitution.
“The action taken by the President falls under the executive function. In such a situation, if the President’s moves are kept out of the judicial review it will be an attack on the principle of the separation of power, control and balance,” reads the verdict.
Constitutional experts say Monday’s verdict is a huge blow to the arbitrary moves by President Bidya Devi Bhandari and she has lost the moral ground to continue in office.
“The court has clearly said there is no immunity to the President’s actions,” Balaram KC, former justice at the Supreme Court, told the Post. “The verdict has established that the President’s moves were a fraud on the constitution. Bhandari now has lost the moral ground to remain in the position.”
President Bhandari on June 21 rejected the claim of Nepali Congress President Sher Bahadur Deuba to form the government saying that his claim was insufficient although 149 members of the 275-member House of Representatives had supported his bid.
In the rejection, the statement of the Office of the President had said that the 26 lawmakers from CPN-UML and 12 from Janata Samajbadi Party were counted in the claims of both Deuba and Prime Minister KP Sharma Oli to form the government as per Article 76 (5) of the constitution.
Oli, presenting the decision of his CPN-UML and the Janata Samajbadi Party, claimed that he had the support of 153 lawmakers—121 from the UML and 32 from the Janata Samajbadi Party—and he should be appointed prime minister as per the same Article.
The President had rejected his claim too.
In a landmark decision, the five-member Constitution Bench, led by Chief Justice Cholendra Shumsher Rana, said that the President wrongly interpreted the constitution and the existing law by rejecting Deuba’s claim.
Pointing out that party whip is not applicable in the case of government formation as per Article 76 (5) of the constitution, the verdict says: “There’s a flaw in the interpretation of the constitution and the existing law and the decision was made breaching the constitutional jurisdiction of the President.”
The Constitutional Bench on Monday ordered that Deuba be appointed prime minister.
“Since Article 76 (5) of the constitution has the clause ‘if any member of the House presents a ground on which s/he can obtain a vote of confidence in the House’, and for that purpose, the claim with 149 members of the House (majority members) should be taken as a sufficient and appropriate basis,” the bench said. “Therefore an order of mandamus has been issued in the name of the Office of the President and the reinstated House to appoint the member of the House who presented his claim for the prime minister within two days from today (or by Tuesday 5pm) and complete the process of getting the vote of confidence as per Article 76 (6) of the constitution.”
Article 76 (6) says a prime minister appointed under Article 76 (5) must secure a vote of confidence within 30 days from the date of appointment.
The verdict says it is the responsibility of the court to correct the moves contradicting the constitution and bring it at par with the constitution and the existing law.
The court has its responsibilities and the authority of the President is prescribed by the laws and the President has to perform the duties and the responsibilities as per the constitution and the federal law, the 167-page verdict says.
It further says the court has the authority to interpret the constitution and it is the duty of everyone with the state responsibilities to follow the interpretation.
The verdict means that as Bhandari has failed to abide by her constitutional limitations, the court had to intervene, according to constitutional experts.
Raju Prasad Chapagain, chair of the Constitutional Lawyers’ Forum, said the court verdict may look like judicial activism to some extent but it was necessary to control the arbitrary moves by Bhandari and Oli.
“I would say the court’s direct order to appoint Deuba as prime minister wasn’t really expected,” he told the Post. “However, it might have been necessary because the court might not have had faith in the President. As the court has said that the President has failed to perform the job to safeguard the constitution, it is better for her to resign.”
Of the 120 points in the verdict, 10 relate directly to the constitutional limitations of the President. It says the Articles 126, 128 and 133 have accepted constitutional supremacy and in a constitutional system adopted in the democratic countries, no one is above the constitution and law.
Political analysts also say the detailed verdict has pointed out that Bhandari’s actions are unconstitutional and she must be mindful that her actions can be criticised and reviewed.
Krishna Pokharel, a professor of political science at the Tribhuvan University, said Bhandari has lost the dignity of the Office of the President and the court has directed her to stay within constitutional boundaries.
“The implied meaning of the verdict is that Bhandari cannot be the President of Oli-led UML,” he told the Post. “The court has raised serious moral questions for her to remain in power. However, as the moral graph of a Nepali politician is really low I would be happy even if she realises her mistakes after the court’s verdict.”
Others say that there is threat to the constitution as long as Bhandari remains as the head of the state.
“I firmly believe that the parties should move with an impeachment motion, if Bhandari doesn’t resign,” said KC, the former Supreme Court justice.