Since the Constitutional Bench issued its second-time verdict on dissolution of the House, supporters of K P Sharma and those who are dissatisfied with the verdict have been vehemently opposing, among other things, the mandamus order to appoint Sher Bahadur Deuba as prime minister under Article 76(5) of the constitution. A pro-royalist leader, Kamal Thapa, compared the verdict to “a bull giving birth inside the Supreme Court.” Meanwhile, outgoing Prime Minister Oli has described it as “an unprecedented incident that has not occurred anywhere in the world and will not occur in the future.” He even chewed stronger words, as if he had been unceremoniously removed from power due to a parmaadesh (mandamus order) rather than a janaadesh (people’s order), implying that he still holds the people’s mandate. During the court proceedings, the lawyers for Oli also argued that “the court cannot appoint a prime minister.” Pradeep Gyawali accused the Deuba government of being appointed by Sriman 5 on the eve of the confidence vote on Sunday. In a roundabout way, he is venting his rage at the Bench’s five presiding judges.
The important questions that loom around are: Why are the critics so dissatisfied with the order? What did the decision say about the Prime Minister’s appointment? More importantly, did the court appoint Deuba as Nepal’s Prime Minister?
The uproar over the order is primarily rooted in the deeper psychology of Oli supporters who are or were previously assuming that the court would, at most, restore parliament as it did in February. They expected the re-established parliament to decide who would be the next prime minister, Oli or Deuba. The ten-point agreement reached between Oli and Nepal factions, announced just a day before the court verdict, was clearly intended to preserve CPN-UML and Oli government unity, if not to influence the court order.
The Oli supporters never expected the court outcomes to be completely contrary to their expectations. It shattered their hopes, expectations, and imaginations in some ways. As a result, there has been a great deal of uproar.
Surprisingly, the verdict appears to be absurd on the surface. The court does not have the authority to appoint a prime minister. It is undeniably under the jurisdiction of parliament and the president. The critics are correct when they say, “If the court can appoint a prime minister, why do we need expensive elections?” ” As a result, there is a need to delve deeper into the verdict. What did the court have to say about the Prime Minister’s appointment? Did it really appoint Deuba as Nepal’s Prime Minister?
The explanations for the nomination of the Prime Minister are detailed on page 119 (154 of the 167-page judgement document). The paper plainly states that, according to Article 76 of the constitution, the President has the authority to designate a Prime Minister. It is categorically not within the court’s jurisdiction. However, the court must intervene because the writ petitioners have raised concerns about the legality and procedures surrounding the nomination of the Prime Minister. To emphasise its thesis, the document uses a hypothetical case: suppose a political party’s leader won a majority in the elections. Under Article 76(1) of the constitution, the President has both the right and the obligation to select him/her as Prime Minister. If the President declines to nominate him/her for any reason, the individual will always seek justice from the court. It is not the court’s responsibility to provide an appointment letter. The court’s function is to interpret the legality of the appointing procedures. Any unconstitutional irregularities in the appointment procedure must be corrected by the court.
Appointing a prime minister by the court may not be legal, but it is unquestionably ethical.
The essential foundations for issuing the ruling can be found on para 120(c) (157 pages) of the document: “It is reasonable to have constitutional redress from the point where errors have been made in the practise and adoption of the constitution” (writer’s translation).
Clearly, the Bench determined that the point at which errors were made was in executing Article 76(5) of the Constitution. These errors included: (a) the President invalidating Deuba’s application for premiership, which was supported by 149 MPs; and (b) entertaining the application of, and also recommending, the dissolution of the House by a prime minister who is ineligible because he has not secured a vote of confidence in the House. The text contains additional elaborations on points (a) and (b). Literally, there is no mention of Deuba being appointed as Nepal’s Prime Minister anywhere in the text.
At this point, one might wonder what would have happened if a mandamus order had not been made in support of Deuba’s writ petition. Or was the order given solely to reconstitute the disbanded parliament? Obviously, this would have gratified certain Oli followers. But one must conceive the unspeakable and imagine the inconceivable. That act would be equivalent to granting vast discretionary power to a ceremonial president, as we have envisioned in Nepal’s federal democratic republic. The President and Prime Minister, hand in glove, will rip and trample the constitution to unidentifiable figures. One may well imagine the constitution saying its final farewell.
The court’s function is to interpret the legality of the appointing procedures. Any unconstitutional irregularities in the appointment procedure must be corrected by the court.
The Oli faction is now accusing the court of amending the constitution in a backdoor way through its order. The faction claims that the order has eliminated the fundamental qualities of multiparty democracy. The grass-roots MPs will thrive in the parliament given that they have unrestricted ability to vote for anyone. However, Oli supporters have failed to distinguish between the constitution’s Articles 76 (2) and 76 (5).
Is it Right or Wrong?
Personally, I believe that debating the court’s appointment of the Prime Minister is meaningless in a country where a Chief Justice can be appointed as the Chief Executive to call second elections to the Constituent Assembly. Anything can happen here for the sake of political expediency. I’m expecting even more unbelievable things to happen in the coming days.
Let me close with a quote from an ethics class: The term rights has two meanings: having the right to do something and doing the right thing. The first confers legal rights or entitlements, whereas the second concerns ethically proper behaviour. It may not be legal (legally correct) for the court to pick a prime minister, but it is certainly ethical (morally correct).
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