President Bhandari, at the recommendation of prime minister K P Sharma Oli, 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 House.
President Bhandari, prime minister Oli and speaker Agni Sapkota separately presented their clarifications in writing to the apex court on the government’s May 21 decision, The Khadmandu Post reported.
The Constitutional Bench on June 9 had asked them to furnish their clarifications in writing.
While the president and prime minister defended their decisions, Speaker Sapkota has called the House dissolution an unconstitutional move.
Sheetal Niwas, the presidential office, even argued that the president’s decision cannot be a subject of judicial review.
“Any action carried out by the president as per Article 76 of the Constitution cannot become a subject of any petition and this cannot be an issue for a judicial review,” the president said in the clarification presented to the court through the Office of the Attorney General.
“While taking the decision, the President ascertained whether the prime minister to be appointed as per the Article 76(5) could get a vote of confidence or not. This can be done only by the president and that’s exactly what the president did.”
President Bhandari referred to Clause 16 of the Remunerations and Benefits of the President and Vice President Act-2017 that gives immunity to the president.
Clause 16 of the Act states that no cases would be prosecuted in any court of law on the actions taken by the president while administering his/her duties whether the person holds office or is retired.
“So the court cannot take any action on a decision taken by the president based on the Constitution without the recommendation of anyone,” president Bhandari asserted.
“And the court cannot issue a mandamus order to appoint a certain person. To make such a demand itself is an issue against the Constitution.”
Oli, 69, on his part, said government formation is a political process and that the court cannot decide on this matter. “The court has the authority to interpret the Constitution, but it cannot play the role of the legislature or the executive,” said Oli in his response.
“Forming governments based on parties’ claims is the fundamental characteristic of the parliamentary system. Our Constitution does not imagine party-less practices. If we run parliament and the government as demanded by the petitioners, this could revive a party-less system like the Panchayat.”
As many as 30 petitions have been filed at the Supreme Court against Oli’s House dissolution move. One of them was filed by the Opposition alliance led by Nepali Congresspresident Sher Bahadur Deuba.
The court is set to start the final hearing from June 23, but it has said the hearing on other petitions would resume after finalising the petition filed by the opposition alliance.
As many as 146 members, including 23 from the Madhav Nepal faction of Oli’s CPN-UML party, of the dissolved House on May 24, had filed the petition at the Supreme Court demanding restoration of the House and passing an order to appoint Deuba as prime minister.
The petitioners have argued that since Deuba had reached Sheetal Niwas in the afternoon of May 21 with the signatures of 149 lawmakers, the President should have appointed him as prime minister. As many as 26 lawmakers from the Nepal faction of the ruling UML had thrown their support behind Deuba’s bid.
Oli had too laid claim to the prime ministerial post, saying he had the backing of 153 lawmakers.
President Bhandari, however, called both the claims by Deuba and Oli insufficient. Subsequently, Oli recommended the dissolution of the House and the President endorsed it.
Experts, however, say the claims made by Oli in his response do not hold water and he has presented some illogical arguments, the report said.
While his argument that the court cannot appoint a prime minister is right, his claim that Article 76 (5) does not allow any lawmaker to become prime minister is a blatant misinterpretation of the Constitution, according to them.
“It looks like Oli is making a forceful defence, instead of going by logic and constitutional bases,” said Balaram KC, a former Supreme Court justice.
Experts say Article 76 (5) was envisioned for ensuring maximum possible longevity of the House, given the experiences in the past of frequent dissolutions.
Constitutional experts have for long argued that Oli and Bhandari dissolved the House without letting Article 76 (5) come into play, the report 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 apex 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”.