Questioning the impartiality of President Bidya Devi Bhandari in the May 22 dissolution of the House of Representatives, lawyers representing petitioners against the move have argued that her actions make it clear that she didn’t want anybody except KP Sharma Oli as prime minister.
A five-member Constitutional Bench of the Supreme Court led by Chief Justice Cholendra Shumsher Rana on Wednesday began the hearing process, starting with the writ jointly filed by 146 lawmakers backing Nepali Congress President Sher Bahadur Deuba’s claim to Prime Ministership.
At the recommendation of Prime Minister Oli, President Bhandari dissolved the lower house for the second time in five months on May 22 and announced snap elections on November 12 and November 19.
Prime Minister Oli is currently heading a minority government after losing a trust vote in the 275-member House.
“Bhandari’s rejection of Deuba’s claim makes it clear that she didn’t want anybody except KP Sharma Oli as prime minister,” The Kathmandu Post quoted advocate Govinda Bandi as saying while arguing on behalf of the petitioners against the House dissolution.
Six of the lawyers arguing on behalf of the plaintiffs presented their arguments for four hours on Wednesday.
As many as 30 petitions have been filed at the Supreme Court against the move.
The Constitutional Bench has said it would first settle the petition filed by Deuba, which is backed by 146 lawmakers, including 23 of Oli”s CPN-UML, of the dissolved House.
“The President gave extra-constitutional justification to invalidate the claim of Nepali Congress President Deuba who had the support of 149 lawmakers,” said Bandi.
The plaintiffs” lawyers claim that the President endorsed the House dissolution well past midnight despite knowing that Deuba”s claim was valid, the paper said.
“The dissolution was a result of an ill-intention,” said senior advocate Khamba Bahadur Khati.
Lawyers argued that the signatures of 149 lawmakers were enough for Bhandari to appoint Deuba as prime minister and if she had doubts about the misuse of the signatures, she could have left the matter to the House to decide, it said.
Before the final hearing began on Wednesday, the Office of the President and the Prime Minister in their written replies to the court had justified their move to dissolve the House.
Asserting that the House of Representatives was dissolved as per the constitutional provisions, Bhandari told the Supreme Court that it cannot overturn her decision on the matter or subject it to a judicial review.
On his part, Oli told the court that it is not up to the judiciary to appoint a premier as it cannot undertake the legislative and the executive functions of the state.
Lawyers of the plaintiffs, however, said on Wednesday that the President had encroached upon the jurisdiction of the legislature by rejecting Deuba”s claim to form a government.
Senior advocate Shambhu Thapa said that nobody has the authority to bar the people”s representatives from staking claim to form a government.
“Who are you [to reject] when 149 lawmakers signed for Deuba?” he asked, referring to the President. “There is a floor test in Parliament to decide if someone holds a majority.”
Senior advocate Mahadev Yadav said argued that the provision of Article 76 (5) was introduced in the Constitution of Nepal to allow individual lawmakers to make efforts to form a government so that the House doesn”t face untimely dissolution.
However, when Chief Justice Rana asked if there was any documentation of discussions in the Constituent Assembly on the article, so as to know the legislative intent, Yadav said he was unaware of it.
The two sides have been allotted 15 hours each to present their cases. The four members of the amicus curiae have 30 minutes each to give their expert opinions.
The hearing will continue on Thursday and will go on until all arguments are complete.
“The plaintiffs” lawyers will conclude their arguments in the next two days,” Kishwor Poudel, a communication expert at the Supreme Court, told the Post.
“Then comes the turn of the defendants,” he said.
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 the automatic dissolution of the House.
Nepal plunged into a political crisis on December 20 last year after President Bhandari dissolved the House and announced fresh elections on April 30 and May 10 at the recommendation of Prime Minister Oli, amidst a tussle for power within the ruling Nepal Communist Party (NCP).
In February, the top court reinstated the dissolved House of Representatives, in a setback to embattled Prime Minister Oli who was preparing for snap polls.
Oli repeatedly defended his move to dissolve the House of Representatives, saying some leaders of his party were attempting to form a “parallel government”.
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