Court should order Deuba be appointed prime minister, lawyers argueAs Article 76 (5) has already been activated, the question now is who should lead the government on its basis, they say. The defendants’ arguments begin today.
Lawyers representing writ petitioners against the May 21 House dissolution have demanded that President Bidya Devi Bhandari appoint Nepali Congress President Sher Bahadur Deuba as prime minister.
They asked the five-member Constitutional Bench led by Chief Justice Cholendra Shumsher Rana to issue a mandamus order in the name of the President to appoint Deuba as per Article 76 (5) since he had the support of 149 lawmakers of the 275-member House of Representatives.
As the lawyers representing the petitioners finished their arguments on Sunday, senior advocate Satish Krishna Kharel said that the President failed to comply with her constitutional responsibilities.
“Oli went to the President with decisions of the parties but Deuba with the signatures of 149 lawmakers. Deuba made the legitimate claim but the President didn’t follow her constitutional duty to appoint the prime minister,” Kharel said at the bench.
After he failed to get a confidence vote in Parliament on May 10, and no one made a claim on forming a coalition government as per Article 76 (2) of the constitution, the President reappointed Oli as prime minister as per Article 76 (3) on May 13 as he leads CPN-UML, the largest party in parliament with 121 seats.
Although such a minority government needs to win a confidence vote within 30 days, Oli instead recommended to the President to call for the formation of a government as per Article 76 (5) of the constitution on May 20.
Both Oli and Deuba had staked their claims on the basis of Article 76 (5). While Deuba had signed support of 149 lawmakers—61 from his Nepali Congress, 49 from Communist Party of Nepal (Maoist Centre), 26 from Madhav Nepal faction of CPN-UML, 12 from Upendra Yadav led faction of Janata Samajbadi Party and one from Rastriya Janamorcha—Oli claimed support of his party’s 121 lawmakers and Janata Samajbadi Party’s 32.
But the President invalidated both claims and subsequently, on Oli’s recommendation, dissolved the House and announced midterm polls for November 13 and 20.
On May 24, 146 of the 149 members of the dissolved House who had signed in support of Deuba, had filed a joint writ petition at the Supreme Court with at least seven demands, including reinstatement of the House of Representatives and an order of mandamus to appoint the Nepali Congress president as the new prime minister.
Kharel claimed that the constitutional bench should not only reinstate the House of Representatives but also issue an order to appoint Deuba as prime minister.
“While issuing an order the bench should not say that the reinstated House will do the needful but it is essential to issue an order to appoint Deuba, who has shown majority support, as prime minister,” Kharel said. “Oli has breached constitutional limits many times and the problem was created after he dissolved the House for the second time. Neither has the President accomplished her constitutional duties.”
He said the President had tried to interfere with the issues which should be sorted out by Parliament.
“Which office will take action against the lawmakers violating the party’s decisions — is it the President's office or parliament,” Kharel asked.
While invalidating Deuba’s claim, the President had said action against the lawmakers of the Nepal faction of the UML and the Yadav faction of Janata Samajbadi Party would be taken and they wouldn't remain lawmakers.
However, according to the Political Parties Act 2017, if a lawmaker violates a party's decision, the Central Committee of the party will have to inform the Parliament Secretariat about the action taken by the party and that will be announced in Parliament and unless the parliament informs its full house, the action taken by the party as per the Political Parties Act 2017, action against them cannot be implemented.
Lawyers also argued on Sunday that the same person cannot be prime minister on the basis of all the relevant articles of the constitution.
“The prime minister must go for a floor test as per 76 (4) within a month,” said advocate Bhimarjun Acharya. “It’s written nowhere that a person can become prime minister from all the provisions of the constitution in a single term.”
Prime Minister Oli first became prime minister of Article 76 (2) in February 2018 and then became prime minister as per Article 76 (1) after the merger of his CPN-UML with the Communist Party of Nepal (Maoist Centre) in May 2018. After losing the confidence on May 10 he was appointed prime minister of 76 (3) on May 13.
“For Article 76 (5) to come into effect the position of the prime minister must be vacant,” said Acharya. “The process of forming a new government cannot begin unless the prime minister goes for a floor test in parliament.”
Therefore, the House must be reinstated first, he said.
Oli never went for a floor test although Article 76 (3), under which Oli was serving since May 13, says he must do so.
But senior advocate Baburam Kunwar said Article 76 (5) has already been activated by the President and now the question is whose claim between Oli and Deuba is valid.
“Since Deuba has already presented the signatures of 149 members, he seems to have a clear majority,” said Kunwar, who has also served as provincial chief of Gandaki Province and is also a former attorney general. “But since 76 (5) was already active, Prime Minister Oli cannot go for a floor test anymore.”
Reiterating arguments of other lawyers last week, Kunwar also said that framers of the constitution had included Article 76 (5) so that the individual lawmakers elected by the sovereign people of the country could save Parliament even if the parties failed.
“Since the utility of 76 (5) was autonomous, any member of parliament can become the prime minister and the party whip is not applicable,” Kunwar said. “With Deuba showing a clear majority, there is no alternative to appointing Deuba as prime minister.”
Likewise, senior advocate Sabita Bhandari, the only female law practitioner pleading on behalf of the petitioners, said Oli, who had surrendered saying he could not garner confidence vote, cannot lay claim to premiership again.
“Not appointing Deuba as prime minister shows the mala fide intention of the President,” Bhandari said.
As many as 16 lawyers pleaded on Sunday while many advocates, including advocate Om Prakash Aryal, were deprived of pleading due to the time limit of 15 hours allocated to each of the two sides, including 3 hours for counterarguments later.
But more than 250 lawyers had submitted their names to participate in the hearing on behalf of the petitioners. Aryal accused a ‘syndicate’ of the lawyers close to political parties as being responsible for his inability to plead and made his notes public through various media.
The defendants’ lawyers will begin their arguments on Monday with lawyers of Speaker Agni Sapkota pleading at the end.
Besides the Speaker, the Office of the President, Prime Minister Oli and the Office of the Prime Minister and Council of Ministers are the defendants. While the President and the prime minister have, in their separate written responses to the Constitutional Bench on June 17, defended the House dissolution and call for midterm elections, the Speaker has termed the move unconstitutional.
Following the arguments of the defendants the four members of the amicus curiae will put forward their views for a total of two hours.
After that the petitioners’ lawyers will be given three hours for rebuttal before the verdict on the case.