A law student has filed a writ petition at the Supreme Court, arguing that the process of forming a new government in Madhesh Province is unconstitutional.
Arjun Sah from Sakhuwa Prasauni Rural Municipality Ward No. 6, Parsa, has filed the petition at the Supreme Court. He is a first-year BA LLB student at Khwopa College of Law in Bhaktapur.
In his petition, Sah has demanded a certiorari order to quash the appointment of chief minister by Madhesh Province Chief Sumitra Subedi Bhandari and to initiate the government formation process anew, in accordance with the constitutional procedure.
He has named the Office of the Province Chief of Madhesh province, the Office of the Chief Minister and Council of Ministers, and the Madhesh Provincial Assembly Secretariat as defendants.
Former chief minister Jitendra Sonal had resigned on Saturday without taking a vote of confidence after two lawmakers from the CPN (Maoist Center) rebelled.
Province Chief Bhandari appointed UML parliamentary party leader Saroj Kumar Yadav as chief minister early morning on Monday.
The petition states that Yadav was appointed as chief minister without even calling for the formation of a new Madhesh provincial government.
"Article 168 (2) of the Constitution of Nepal provides for the appointment of the parliamentary party leader of the party with a majority in the provincial assembly as the chief minister. However, the Office of the Province Chief of Madhesh did not follow this procedure and directly appointed the chief minister under Article 168 (3). Prior to this appointment, the province chief had not called upon members of the provincial assembly to form a government according to the Constitution. Therefore, it is clear that this appointment contravenes the spirit of the Constitution, due process, and the principle of rule of law," it states.
Sah argues that Article 168 (3) cannot be used until it is officially declared that a party or coalition has failed to form a government.
He explained that he approached the Supreme Court because the unilateral decision by the Office of the Madhesh Province Chief to appoint a chief minister without calling upon members of the provincial assembly to form a government is unconstitutional and beyond its jurisdiction.
Sah contends that such an action violates the principles of constitutional rule, impartiality, rule of law, and democratic accountability laid out in Nepal's Constitution.
The petition demands that the chief minister's appointment made by the Office of the Province Chief under Article 168 (3) be declared illegal and unconstitutional, and that an interim order of certiorari be issued to quash it.
It also demands that any appointment made without completing the process under Article 168 (2) be declared null and void, and that a mandamus order be issued directing the province chief to call upon members of the provincial assembly to form a government in accordance with the spirit of the constitution.
Madhesh Province Chief Bhandari has been summoned to the Supreme Court on Tuesday at 10 a.m.
On Monday, Rocky Prasad Sah also filed a petition naming the Office of the Province Chief and the Office of the Chief Minister and Council of Ministers as defendants.
The Supreme Court has scheduled Tuesday for a hearing on the petitions.
