The Supreme Court (SC) while issuing mandamus instructing to make Nepali Congress (NC) President Sher Bahadur Deuba prime minister (PM) has also ruled that the speaker can convene House session or meeting on her/his own initiation.
The Constitutional provision of the president convening and ending House session on recommendation of PM has been practiced until now.
Article 93(3) of the Constitution states "If, during the prorogation or recess of the House of Representatives (HoR), one-fourth of its members submit a request stating that it is desirable that a session or meeting of House of Representatives be called, the President shall call the session or meeting of the Parliament by setting date and time for this within a fortnight, and House of Representatives shall convene or commence its session on the specified date and the time thus fixed."
The SC verdict on Tuesday has explained the issue of convening House session/meeting to be a procedural issue and has ruled that House session can be moved forward on initiation of the speaker.
Pointing that calling session/meeting is a procedural issue it has stressed that responsible involvement of the sovereign people's representatives in governance system of the state is the main issue and added that the main issue cannot be unfairly influenced through procedural matters. It has ruled that the HoR itself should identify the path for removing obstructions if there are unfair and unwanted obstructions in that.
"There will remain a situation where the authorities granted by the Constitution can be exercised by holding meeting of the HoR members on initiation of the speaker if HoR session or meeting is not convened in a procedural manner under special circumstances," the SC verdict states.
Speaker Agni Sapkota had mentioned in his written response provided to the SC in the case that no consultation was held on the issue of House dissolution with him. The SC has stressed that the HoR cannot be deemed to be an institution under control of the government. Referring to the principle of separation of powers it has pointed how the House can control and make the government accountable.
It has also ruled that the HoR can discuss about the issue of government formation along with other important issues of public concern.
The five-strong constitutional bench including CJ Cholendra Shumsher Rana, and Justices Deepak Kumar Karki, Meera Khadka, Ishwore Khatiwada and Ananda Mohan Bhattarai hearing the petition against House dissolution has also ruled that parties cannot impose whip on lawmakers supporting to make Nepali Congress (NC) President Sher Bahadur Deuba prime minister after he becomes PM while issuing the mandamus instructing to appoint Deuba PM by five Tuesday afternoon.
The lawmakers of Khanal-Nepal faction of CPN-UML had signed in support of making Deuba the next PM as per Article 76(5) of the Constitution. The Apex Court has interpreted the provision explaining that party whip cannot be imposed over the government formed under Article 76(5) of the Constitution.
The claim of KP Sharma Oli to form government under Article 76(5) of the Constitution after what he claimed was paving the way for formation of the next government citing he doesn't have support of the majority of the House has also been deemed unconstitutional.
It has also ruled that the support of 149 HoR members to make Deuba PM has to be considered as sufficient and appropriate grounds to show he can pass the floor test.
The bench in this way has pointed that President Bhandari first went out of the track by recognizing the unconstitutional claim of Oli to be appointed PM as per Article 76(5) of the Constitution and then subsequently refusing to recognize the valid claim of Deuba to form the next government subsequently leading to the House dissolution.
It has, therefore, ordered to start course correction from the point where President Bhandari first erred thereby instructing to appoint Deuba as PM.
The constitutional bench formed on the basis of seniority had heard the case after lawyers of petitioners and even SC justices raised questions about the bench CJ Rana picked earlier using his prerogative to pick the bench as he deemed fit.
Justices Deepak Kumar Karki and Ananda Mohan Bhattarai who were in the earlier bench had quit the bench following refusal by Justices Bam Kumar Shrestha and Tej Bahadur KC to recuse from the case writing that the case about CPN unification is related to House dissolution.
Shrestha was part of the joint bench also including Kumar Regmi that invalidated the unification of CPN on March 7 reinstating CPN-UML and CPN (Maoist Center) to the state before their unification while KC was part of the bench that refused to review that verdict.
The SC had decided to 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 saying 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 conducted continuous hearing on the Deuba's petition from June 23.
The Deuba's petition basically had four demands. The first was revocation of the decision of President Bidya Devi 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 nither 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 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.
The SC had also revoked House dissolution by Oli earlier in the year. A five-strong constitutional bench led by CJ Rana on February 23 had unanimously ordered House reinstatement after two months of hearing. It had also issued a mandamus ordering that the House session be convened within 13 days.
"The statement recommended by prime minister on December 20 and issued by the president after endorsement has been revoked in a way that it is constitutionally and legally void as it is unconstitutional since there is no pre-existing constitutional condition of the prime minister of majority formed in accordance to the Article 76(1) dissolving the House as per Article 76(7)," CJ Rana had stated reading the verdict.
The SC in its verdict also explained the process through which the Article 76(7) can be exercised to dissolve the House pointing it can be dissolved only when all clauses of Article 67 leading up to 76(7) are exercised.
President Bhandari had first dissolved the House on recommendation of the Cabinet on December 20.
