Five lawyers representing Speaker Agni Prasad Sapkota and a lawyer representing the petitioners told the constitutional bench of the Supreme Court that President Bidhya Devi Bhandari acted beyond her scope when she dissolved the House of Representatives on the recommendation of the government. On May 22, the president had dissolved the HoR saying that there was no possibility of forming an alternative government under Article 76 (5) of the constitution.
Senior Advocate Lav Kumar Mainali argued on behalf of the speaker that Prime Minister KP Sharma Oli’s move dissolving the HoR was a kind of constitutional coup d’etat, as the PM had offered wrong arguments about the constitutional provision supporting his move. He said the framers of the constitution incorporated Article 76 (5) to ensure that the HoR completed its full five-year term.
Advocate Megha Raj Pokharel, who also argued before the bench on behalf of the speaker, said the president acted in a hurry when she dissolved the HoR on May 22 because she did not consult constitutional experts or political leaders on which of the two claimants for the prime minister’s post – Oli or Nepali Congress President Sher Bahadur Deuba – had credible reasons for winning the vote of confidence in the HoR.
He argued that if the president had any doubt about signatures of HoR members who had supported Deuba, she could have referred the matter to the Parliament Secretariat to verify the signatures, but she did not do that.
He said the defendants’ argument that even under Article 76 (5) the person who wanted to be the PM should have the support of political parties was wrong, as that was a special provision in the constitution to allow any member of the HoR to become the PM and support any member’s bid for prime ministership.
He said since constitutional provisions were more important than provisions of the anti-defection law, the law could not be cited to dismiss Deuba’s claim.
Defendants’ lawyers had argued that some HoR members from the UML and Janata Samajbadi Party-Nepal supported Deuba’s bid for prime ministership without adhering to their parties’ decisions, bringing anti-defection law into the picture.
He said if there was no significant difference between Article 76 (2) and 76 (5), then there was no need for Article 76 (5) in the constitution.
Petitioners’ lawyer Senior Advocate Raman Kumar Shrestha said there were multiple provisions in the constitution that allowed HoR members to act independently without being punished by their mother parties. He said provisions related to moving of no-trust motion and articles of impeachment against constitutional post holders did not require HoR members to have mandatory support from their mother parties.
“If the provisions that allow HoR members to act independently do not undermine the spirit of the party system, how can defendants argue that if HoR members are allowed to express their independent support to a candidate’s bid for prime ministership under Article 76 (5), it will undermine the party system and promote the party-less system?” he wondered.
He also rebutted defendants’ argument that the president’s action of not appointing any of the two candidates the PM cannot be reviewed by the court, saying that since the Supreme Court had reviewed unconstitutional actions of former kings, it could also review the president’s action as well.
He said the court should interpret the president’s powers.
Other lawyers representing the petitioners will rebut the defendants’ arguments tomorrow.
Four amici Curiae, who have been given two hours for their oral submission will also present, their arguments tomorrow.