Is it lawful to appoint the prime minister by the court?

Why are the critics expressing so much displeasure with the court order? What did the verdict actually say about the PM's appointment?

Narayan Manandhar

  • Read Time 4 min.

Ever since the Constitutional Bench gave its second-time verdict on dissolution of the House, the supporters of K P Sharma and those not happy with the verdict are vehemently opposing, among other things, the mandamus order to appoint Sher Bahadur Deuba as the prime minister under Article 76(5) of the constitution. Kamal Thapa, a pro-royalist leader, has compared the verdict to “a bull birthing a calf inside the Supreme Court”. Meanwhile, the outgoing PM Oli has termed it “as an unprecedented incident that neither happened anywhere in the world nor will happen in future”. He even chewed stronger words like he had been unceremoniously removed from the power because of parmaadesh (mandamus order) not janaadesh (people’s order), suggesting that he still holds people’s mandate. During the court deliberations, the lawyers representing Oli too argued that “the court cannot appoint a prime minister”. On the eve of the confidence vote taking place on Sunday, Pradeep Gyawali accused the Deuba government of being appointed by Sriman 5. In a roundabout fashion, he is spewing his venom against five presiding judges in the Bench.

The important questions that loom around are: Why are the critics expressing so much displeasure with the order? What did the verdict say about the PM’s appointment? More importantly, did the court appoint Deuba to be the Prime Minister of Nepal?

The hue and cry over the order is primarily rooted into deeper psychology of Oli supporters who are or were, hitherto, assuming the court, at most, would restore parliament as it did in February. They were expecting that the restored parliament would decide the fate of the next prime minister—Oli or Deuba. The ten-point agreement between Oli and Nepal factions, released just a day before the court verdict, was clearly designed to keep intact the unity of CPN-UML and that of Oli government, if not to influence the court order.

The Oli supporters never expected court outcomes to go totally against their imagination. In a way, it shattered their dreams, expectations and imaginations. Hence the hue and cry. 

The verdict between the lines

At the surficial level the verdict does give an impression of absurdity. The court has no right to appoint a prime minister. Definitely, it is under the jurisdiction of parliament and the president. The critics are right in saying “if a prime minister can be appointed by the court why do we need expensive elections?” Therefore, there is a need to take a deeper dive into the verdict. What did the court say about the PM’s appointment? Did it really appoint Deuba the Prime Minister of Nepal?

The explanations on PM’s appointment are mentioned on para 119 (154 page) of the 167-page verdict document. The document has clearly stated that, as per Article 76 of the constitution, the right to appoint a Prime Minister rests with the President. It is definitely not under the jurisdiction of the court. However, the court has to intervene because the writ petitioners have raised questions over the legality and procedures related to the PM’s appointment. To drive its point home, the document illustrates a hypothetical case: Suppose a leader from a political party secured a majority in the elections. The President has a right as well as duty to appoint him/her as the Prime Minister under Article 76(1) of the constitution. Suppose, for some reasons, the President declines to appoint him/her, the person will invariably seek justice from the court. It is not the job of the court to issue an appointment letter. The job of the court is to interpret the legality of the procedures related to the appointment. The court has to correct any unconstitutional deviations in the process of appointment.

It may not be lawful to appoint a prime minister by the court but it is definitely an ethical thing to do.

On para 120(c) (157 pages) of the document, one can read basic tenets for issuing the order: “It is reasonable to have constitutional redress from that point where errors have been committed in the practice and adoption of the constitution” (writer’s translation).    

Obviously, the Bench found that the point where errors have been committed is at implementing Article 76(5) of the constitution. These errors included: (a) the President invalidating Deuba’s application for premiership endorsed by 149 MPs; (b) entertaining the application of and also recommendation to dissolve the House by a prime minister who is ineligible because he has not secured a vote of confidence in the House. More elaborations of points (a) and (b) can be found in the document. Literally speaking, the document has nowhere specifically named Deuba to be appointed as the Prime Minister of Nepal.  

At this stage, one can ask a question: What would have happened if a mandamus order was not issued favoring Deuba’s writ petition? Or the order was issued only to restore parliament that was dissolved? Obviously, this would have satisfied Oli supporters to some extent. But one will have to think the unthinkable, imagine the unimaginable. That act will be like giving enormous, discretionary power to a ceremonial president that we have conceived in the federal democratic republic Nepal. The duo—the President and the Prime Minister—hand-in-glove will be tearing and trampling the constitution to an indistinguishable figure. One can fairly imagine RIP to the constitution.

The job of the court is to interpret the legality of the procedures related to the appointment. The court has to correct any unconstitutional deviations in the process of appointment.

The Oli faction is now accusing that the court, through its order, has amended the constitution in a roundabout fashion. The faction is charging that the order has done away with the basic features of multiparty democracy. The grass-hopping MPs, with unrestricted freedom to vote for anyone inside the parliament, will now thrive inside the parliament. However, Oli supporters have failed to differentiate between Articles 76 (2) and 76 (5) of the constitution.

Right or wrong?

Personally speaking, it is pointless to debate over the court appointing the PM in a country where a Chief Justice can be appointed as the Chief Executive to hold second elections to the Constituent Assembly. For the sake of political expediency, anything can happen here. I am imagining more unimaginable things to happen in the days to come.

Let me conclude with para from a course in ethics: The word rights carry two meanings—having a right to do and a right thing to do. The first one confers legal rights or entitlements and the second one is the about morally correct things to do. It may not be lawful (legally correct) to appoint a prime minister by the court but it is definitely an ethical thing (morally correct) to do.