The constitutional bench of Supreme Court (SC) on Wednesday has started hearing on the petition filed by Nepali Congress (NC) President Sher Bahadur Deuba and others demanding Deuba be appointed prime minister (PM) as per Article 76(5) of the Constitution.
Two advocates and three senior advocates will plead on behalf of Deuba on Wednesday. Advocate Khamba Bahadur Khati started first with 20 minutes allotted to him. Govinda Bandi (40 minutes) will follow Khati.
Senior advocates Badri Bahadur Karki, Shambhu Thapa and Mahadev Yadav will make arguments after Bandi. Senior advocates Harihar Dahal and Raman Shrestha will plead on Thursday.
The Apex Court has allotted a total of 15 hours to lawyers of the petitioners including 12 hours at the beginning and three hours to make arguments in response to that by lawyers pleading on behalf of the defendants who have also been allotted 15 hours.
A total of 250 lawyers have applied to plead on behalf of the petitioners but just a few of them will get to argue before the bench. A member from the team of lawyers of the petitioners said the pleading note, however, will include name of all the lawyers who come to sign by Thursday.
The Office of the Attorney General (OAG), meanwhile, will submit a single pleading note on behalf of the Office of the Prime Minister and Council of Ministers, and the President's Office while around 11 lawyers are preparing to make arguments.
The OAG will take up half of the 15 hours allotted for the lawyers of defendants. Advisors to PM KP Sharma Oli and lawyers of Speaker Agni Sapkota, who has also been named a defendant in the case, will take up the other half of the time.
The Office of the Prime Minister and Council of Ministers, the President's Office and office of Speaker Sapkota have already submitted written response in the case.
The President's Office replied to the SC explaining the reason for not appointing Nepali Congress (NC) President Sher Bahadur Deuba and dissolving the House instead.
The SC on June 9 had asked the defendants to furnish reasons for dissolving the House. The President's Office sending a written response argued that Deuba's claim did not look credible as only two parties had submitted support for Deuba, sequence of signatures of lawmakers was not right, and the status of the party of some of the lawmakers was not revealed.
It also pointed that party lawmakers who Prime Minister (PM) KP Sharma Oli claimed supported him seemed to have supported another claimant. President Bidya Devi Bhandari decided that claims of both the claimants lacked credibility as there was no credible grounds for both the claimants to get confidence vote in a constitutional manner, the response adds.
PM Oli also sent an 18-point response to the SC through the Office of the Attorney General pointing that the court cannot appoint PM.
"Opponent Sher Bahadur Deuba seems to have demanded he be appointed PM while submitting his claims and demands. The court interprets the Constitution and laws. It cannot play the role of legislature and executive itself," he stated. "This is inherently a political and executive process. Article 76 of the Constitution has not granted the rights to appoint PM to anybody other than the President."
He argued that the House has been dissolved in accordance to the earlier SC verdict which said it can be dissolved only if PM can't be appointed as per Article 76(1), (2), (3) and (5) and added that there was no meaning to continue the House of Representatives (HoR) that cannot provide any solution from political perspective.
He also called the support of dissident CPN-UML lawmakers to make Deuba PM unconstitutional pointing that the Constitution does not envision non-party exercise, and claimed that operating the government in accordance to the demands of writ petitioners would revive non-party system as seen during the Panchayat regime.
Oli told the SC that it is inconceivable to even think about lawmakers of a party supporting an opposition leader for the post of PM when the party's leader has staked claim for the post. "It is not even imagined that an HoR member elected by the people on the basis of the party's principles, policies and manifesto has an independent status against the people's mandate in a party-based system."
Pointing that the parties can impose whip on the lawmakers, he contended that working in violation of the party whip is tantamount to quitting the party and added that vote of such lawmakers cannot be counted.
The Apex Court will hear and give verdict on the 30 petitions related to House dissolution in two stages.
The constitutional bench that issued show cause notice against the defendants in all 30 petitions will first hear the petition filed by Nepali Congress (NC) President Sher Bahadur Deuba and others demanding Deuba be appointed prime minister (PM) as per Article 76(5) of the Constitution. It will start hearing on other 29 petitions including that filed by Deepak Raj Kandel only after giving its verdict in the petition of Deuba.
The bench will conduct continuous hearing on the petition of Deuba others from Wednesday and has allocated time for written response, pleading note and time allocated for arguments in the written order. "The persons with direct stake and relation with House dissolution have come for the judicial process seeking constitutional recourse. It seems necessary to prioritize the writ petition filed by 146 persons in comparison to petitions submitted showing public interest, and accordingly arrange for appropriate process and conduct hearing process for the dispute," the bench said issuing order in the petition of Kandel.
The Deuba's petition basically has four demands. The first is revocation of the decision of President Bhandari that Deuba's claim for appointment as PM as per Article 76(5) of the Constitution is not justified instead of appointing him as PM. The second revocation of the decision of President Bhandari to dissolve the House and announce election pointing that the new government could not be formed. The third appointment of Deuba as PM as two parties and the majority of lawmakers have signed in support of him. And the fourth an order prohibiting the parties concerned from punishing the supporting lawmakers.
The 146 lawmakers had all reached the Apex Court to authenticate their signatures to register the Deuba's petition. This is the first time that majority lawmakers turned up at the SC premises demanding formation of government. The staffers at the Apex Court took cognizance of the fact and could be seen capturing the historic moment in the camera.
NC President Deuba had reached the Shital Niwas with list of 149 House of Representatives (HoR) members including 26 lawmakers from the Khanal-Nepal faction of CPN-UML, 12 of the Yadav-Bhattarai faction of Janata Samajwadi Party (JSP) and one from Rashtriya Janamorcha on May 21 staking claim for formation of government.
But Oli reached the Shital Niwas before Deuba and staked claim for the government falsely claiming that he has support of 153 lawmakers including 121 CPN-UML lawmakers and 32 of JSP just a day after telling President Bhandari to go for formation of new government in accordance to Article 76(5) of the Constitution pointing he does not have numbers to pass the floor test.
Oli had repeated that he did not opt for floor test as he does not have majority during his press conference with editors of media outlets that was broadcast live across the country less than a couple of hours before staking claim with President Bhandari saying he has support of 153 lawmakers.
But President Bhandari did not appoint Deuba as the PM pointing at the false claims of Oli.
Issuing a notice just before midnight on May 21, she reasoned that Oli cannot be appointed PM as 26 lawmakers of CPN-UML and 12 of Janata Samajwadi Party (JSP) that he included in his claim to contend that he has support of 153 House of Representatives (HoR) members signed in support of Deuba.
She, meanwhile, argued that Deuba cannot be appointed as UML Chairman and parliamentary party leader Oli wrote to not recognize signatures of 26 UML lawmakers who have supported another candidate when one's own parliamentary party leader has staked claim and will be punished for indiscipline in a way that they will not even remain HoR member, and JSP Chairman Mahantha Thakur and parliamentary party leader Rajendra Mahato also wrote to not recognize signatures of 12 JSP lawmakers saying they have signed against the dignity of the party.
Calling an emergency Cabinet meeting just minutes after President Bhandari said that none of Oli and Deuba can be appointed the next PM, Oli recommended President Bhandari to dissolve the House and hold the election in two stages on November 12 and 19.
President Bhandari then issued a statement in the wee hours of May 22 to dissolve the House and announce the next election as per recommendation of the Cabinet.
The opposition parties then jointly moved the SC demanding Deuba be appointed PM.
All the 149 lawmakers apart from Gokarna Bista, Pavitra Niraula Kharel, Raj Bahadur Buda and Ganesh Pahadi who were among 26 of the Khanal-Nepal faction to sign in support of Deuba on May 21 signed on the writ petition while Kalila Khatun, who hadn't signed on May 21, signed on the petition.
The strength of HoR before it was dissolved was 271 after Maoist Center expelled four lawmakers who joined CPN-UML after the Supreme Court (SC) invalidated unification of UML and Maoist Center on March 7.
UML had 121 lawmakers including those of the Khanal-Nepal faction, NC 63 (but two are suspended), Maoist Center 49 (excluding Speaker), JSP 34 (including two suspended) and three lawmakers were independent.
The parties had to muster support of 136 lawmakers for majority.
