President Bidya Devi Bhandari, Prime Minister KP Sharma Oli and Speaker Agni Sapkota have separately presented their clarifications in writing with regards to the government’s May 21 decision to dissolve the House of Representatives.

The Constitutional Bench on June 9 had asked them to furnish their clarifications in writing.

While the President and prime minister have defended their decisions, the Speaker has called the House dissolution an unconstitutional move.

Sheetal Niwas has even argued that the President’s decision cannot be a subject of judicial review.

“Any action carried out by the President as per Article 76 of the constitution cannot become a subject of any petition and this cannot be an issue for a judicial review,” the President said in the clarification presented to the court through the Office of the Attorney General.

“While taking the decision, the President ascertained whether the prime minister to be appointed as per the Article 76(5) could get a vote of confidence or not. This can be done only by the President and that’s exactly what the President did.”

President Bhandari has referred to Clause 16 of the Remunerations and Benefits of the President and Vice President Act-2017 that gives immunity to the President.

Clause 16 of the Act states that no cases would be prosecuted in any court of law on the actions taken by the President while administering his/her duties whether the person holds office or is retired.

“So the court cannot take any action on a decision taken by the President as per the constitution without recommendation of anyone,” President Bhandari said. “And the court cannot issue a mandamus order to appoint a certain person. To make such a demand itself is an issue against the constitution.”

Oli, on his part, said government formation is a political process and that the court cannot decide on this matter.

“The court has the authority to interpret the constitution, but it cannot play the role of the legislature or the executive,” said Oli in his response. “Forming governments on the basis of parties’ claims is the fundamental characteristic of the parliamentary system. Our constitution does not imagine party-less practices. If we run Parliament and the government as demanded by the petitioners, this could revive a party-less system like the Panchayat.”

As many as 30 petitions have been filed at the Supreme Court against Oli’s House dissolution move. One of them was filed by the opposition alliance led by Nepali Congress President Sher Bahadur Deuba.

The court is set to start the final hearing from June 23, but it has said hearing on other petitions would resume after finalising the petition filed by the opposition alliance.

As many as 146 members, including 23 from the Madhav Nepal faction of Oli’s CPN-UML party, of the dissolved House on May 24, had filed the petition at the Supreme Court demanding restoration of the House and passing an order to appoint Deuba as prime minister.

The petitioners have argued that since Deuba had reached Sheetal Niwas in the afternoon of May 21 with the signatures of 149 lawmakers, the President should have appointed him as prime minister. As many as 26 lawmakers from the Nepal faction of the UML had thrown their support behind Deuba’s bid.

But on the same day, Oli, who just a day before had said there was no situation for him to prove a majority in the House, too laid claim to the prime ministerial post, saying he had the backing of 153 lawmakers.

President Bhandari, however, called both the claims by Deuba and Oli insufficient. Subsequently, Oli recommended the dissolution of the House and the President endorsed it.

Experts, however, say the claims made by Oli in his response do not hold water and he has presented some illogical arguments. While his argument that the court cannot appoint a prime minister is right, his claim that Article 76 (5) does not allow any lawmaker to become prime minister is a blatant misinterpretation of the constitution, according to them.

“It looks like Oli is making a forceful defence, instead of going by logic and constitutional bases,” said Balaram KC, a former Supreme Court justice. “He should have admitted his mistake and said he would accept whatever decision the court takes.”

Experts say Article 76 (5) was envisioned for ensuring maximum possible longevity of the House, given the experiences in the past of frequent dissolutions.

While Clauses 1, 2 and 3 of Article 76 provide the leader of a party a basis to lay claim to government, Clause 5 says any individual lawmaker can do so, in case the earlier provisions fail.

Constitutional experts have for long argued that Oli and Bhandari dissolved the House without letting Article 76 (5) to come into play. The petitioners say the President should have left it for the House to test if Deuba had a majority or not. Had he failed to prove a majority, he would have been unseated, thereby leading to automatic dissolution of the House.

But Oli in his response has presented an assumption to justify his House dissolution. He has said there was no situation for the House to give a new government. Oli has said the claims made by the petitioners are against the basic spirit of the constitution and democracy.

Experts, however, say the prime minister is misinterpreting the constitution.

“The prime minister seems to have compared our system with that of the United Kingdom where conventions are followed as it does not have a written constitution,” said KC. “Oli has undermined his position as the prime minister and has challenged the rule of law through his response. It’s absurd.”

Bhimarjun Acharya, an advocate who specialises on constitutional law, said Oli’s defence saying the court cannot look into political matters has already been dismissed by the Supreme Court.

When Oli was asked to present his clarification after he dissolved the House for the first time on December 20, he had argued that it was a political decision, hence did not need a judicial review. But the Supreme Court on February 23 overturned his decision, thereby setting a precedent that House dissolution is not just a political matter.

“Oli as party to the case can make his points to defend his move, but I don’t think any of his points are acceptable,” said Acharya. “He has made a right argument that the court cannot make a prime minister, but he is wrong to say that the President has the sole authority to appoint a prime minister.”

In his response, Oli has cited Article 76 to argue that the authority to appoint the prime minister is vested in the President.

Experts say the appointment of a prime minister by the President is just a process.

“In the parliamentary system, neither the President nor the court makes a prime minister,” said Acharya. “It’s Parliament that makes a prime minister.”

According to Acharya, Oli’s argument that petitioners’ demand raises fears of revival of the party-less system is also flawed.

“Unlike Article 76 (2), Article 76 (5) envisions every member of the House as a sovereign entity,” said Acharya. “They are not limited to the ambit of political parties as every individual is free to make a choice with a conscience and this does not undermine the essence of the multi-party system in any way.”

Oli has brought up the party-less issue in view of some members from his party supporting the opposition alliance.

In his response, he has also asked how his party, the UML, will be viewed–as the ruling one or opposition one–if Deuba is appointed prime minister with the support of some of the members from his party.

Speaker Sapkota, in his response, has hit out at both the President and prime minister.

“The activities of the prime minister and the President are against constitutional morality, constitutional objectivity, constitutional governance and legitimate constitutional trust and constitutional culture and pragmatism," Sapkota has said. “The House is the only place where if any member has the confidence can be tested. The President’s decision not to let the House play its role is unconstitutional.”

According to Sapkota, the prime minister, who had publicly accepted that he did not have the confidence of the House, cannot lay claim to the government as per Article 76 (5) both constitutionally and morally.

“It was against the constitution not to appoint a member of the House who presented the basis to form an alternative government as per Article 76(5),” he said.

However, in his response to the Supreme Court, Speaker Sapkota has claimed that the House of Representatives was the only place that can test whether the claim of any member of Parliament has the confidence of the House as per the Article 76(5), hence the President’s decision was unconstitutional.

Experts say the way the clarifications have come was expected, as Bhandari and Oli still appear to be on the same page, defending their moves.

KC, the former Supreme Court justice, said that Oli had already surrendered and therefore had lost his right [locus standi] to lay claim to the government and therefore the Congress president was the sole candidate. But the President continued to consider Oli as the other candidate, he said.

“The President, in coordination with the executive head, continued to create constitutional problems one after another,” said KC. “Sheetal Niwas is the cause of all ills, as President Bhandari could have easily avoided the potential constitutional crisis.”