12 Jul, 2021
Kathmandu, July 12: The Supreme Court (SC) has issued mandamus instructing to make Nepali Congress (NC) President Sher Bahadur Deuba prime minister (PM) within two days.
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 ordered so on Monday.
It has also revoked the decision of President Bidya Devi Bhandari to dissolve the House of Representatives (HoR) on May 22 on recommendation of Prime Minister (PM) KP Sharma Oli.
The Apex Court has also ordered to convene the House session within seven days.
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. SETOPATI