The Supreme Court has ordered a written response to the petition filed against the appointment of former Chief Justice Sushila Karki as Prime Minister and the dissolution of the House of Representatives after the Gen-G movement within seven days. The Supreme Court has refused to issue an interim order as requested by the petitioner and legal practitioners. The final hearing will proceed after the written response is received within a week.

The constitutional bench comprising Chief Justice Prakash Man Singh Raut, Justices Sapana Pradhan Malla, Kumar Regmi, Hari Prasad Phuyal and Manoj Sharma began the debate at 11 am on Wednesday. After a day-long debate, the bench ordered to seek a written response within a week and to proceed with the final hearing after receiving the written response. The bench said that the issues sought by the petitioner in the interim order were of a nature that should be considered during the final hearing, so it did not need to issue an interim order. 

After the Supreme Court's order, the opponents of the writ will submit a written response through the Attorney General's Office. After that, a presentation will be scheduled for the final debate. Although the court rejected the demand to schedule the next presentation for the hearing on Wednesday itself. The Office of the President, Speaker Devraj Ghimire, Parliament Secretariat, Prime Minister Sushila Karki and the Office of the Prime Minister and Council of Ministers have been named as respondents in the writ.

16 writs were heard in a single bench on Wednesday. The advocates raised 5 main questions. They questioned the constitutional basis for appointing Sushila Karki as Prime Minister, the President's authority to form the government, the appointment of a former Chief Justice as Prime Minister, the jurisdiction of the electoral government, and the dissolution of the House of Representatives by the interim Prime Minister. These were the issues that were discussed in the constitutional bench. 

Chief Justice Raut had asked all the writ petitioners to organize the debate, saying, "It should be over today" before the debate began in the bench. Advocate Prem Silwal, who argued initially, claimed that the decision to appoint former Chief Justice Karki as Prime Minister was unconstitutional. He argued that there was no justification for an election to be held by an unconstitutional government. He also raised the question of what would happen to the constitutional system if the government was formed on the strength of the streets. Advocate Silwal also commented that the government formed to hold elections within 6 months could not even maintain peace and security. 

After Silwal, senior advocate Tikaram Bhattarai argued on behalf of the writ petitioners Ayush Badal, Bipin Dhakal, and Prakash Bhujel. He mentioned that this writ petition was also filed by Gen-G and drew the attention of the bench to expedite the decision. For this, his proposal was to seek a written response within 10 days and to conclude it by continuous hearing after receiving the response. He presented an example of how the House of Representatives was dissolved in 2077 and 2078 on the recommendation of the then Prime Minister KP Sharma Oli. 

Bhattarai argued that Articles 74, 75 and 132 of the Constitution were violated when former Chief Justice Karki was appointed as the Prime Minister. Article 74 of the Constitution states that ‘the form of government of Nepal shall be a multi-party competitive federal democratic republican parliamentary system of government based on pluralism’. Article 75 states that the executive power of Nepal shall be vested in the Council of Ministers in accordance with the Constitution and the law. Similarly, Article 132 (2) states that ‘a person who has been the Chief Justice or a judge of the Supreme Court shall not be eligible for appointment to any government position except as otherwise provided in the Constitution.’ 

Senior advocate Bhattarai argued that the constitutional provision that a person who has been a member of the House of Representatives should be the Prime Minister, and that the recommendation and participation of the parties should be required for that, has also been violated. He added, ‘The constitution does not allow a person who has been a judge of the Supreme Court to go to anything other than the Human Rights Commission. In such a situation, Karki’s appointment is unconstitutional.’

Bhattarai argued that Prime Minister Karki’s recommendation for the dissolution of the House of Representatives was also unconstitutional. ‘How can a person who is not a member of the House of Representatives recommend dissolution?’ His question was, ‘The dissolution of the House of Representatives should be in accordance with Article 77 of the Constitution. This time, the letter from the President’s Office approving the recommendation for dissolution made by the Prime Minister does not mention any article of the Constitution. Was the dissolution recommended under any article of the Constitution?’

Senior advocate Bhattarai argued that the expansion of the Council of Ministers on 29 Bhadra was also unconstitutional. ‘Under which constitutional provision did former Supreme Court Justice Anil Kumar Sinha become a minister?’ he asked. 

Bhattarai said that the court should also give a conclusion on whether or not elections should be held immediately. ‘The preparations for the election scheduled for 21 Falgun should not be affected,’ he said, ‘It is also necessary to have a parliament to address the demands of Gen-G. 

Senior advocate and former president of the Nepal Bar Association Sher Bahadur KC claimed that a former Chief Justice cannot be the Prime Minister. In the past, he said, the then Chief Justice Khilraj Regmi became the Chairman of the Council of Ministers for election purposes, and the then bench led by the then Judge Sushila Karki had already explained this. ‘In the past, the bench led by Sushila Karki had ruled that a former judge cannot lead the government,’ KC said, ‘How can it be right in his case now?’ When the court ruled on Regmi’s appointment, elections had already been held and a new government had been formed. 

Senior advocate KC also mentioned that when the then Prime Minister KP Sharma Oli dissolved the House of Representatives, the Constitutional Bench had explained that the exercise should be carried out in Parliament as long as there was a possibility of forming a government. He demanded that the government be stopped from making decisions of far-reaching importance by issuing an interim order. 

Senior advocate Ekraj Pokharel claimed that the President's Office violated the constitutional provision that prohibits the appointment of a person other than a member of the House of Representatives as Prime Minister. 'Initially, the Prime Minister was appointed through an unconstitutional process. It is clear from the constitution whether the Prime Minister can dissolve the parliament elected by the people or not,' he said. 

While Pokharel was debating, Judge Sapana Pradhan Malla asked, 'Now is the time for a debate on an interim order. Some things will be explained when the decision is made, so what should be in the interim order?' Pokharel mentioned that the government should not be asked to do any important work in the interim order since the initial appointment was unconstitutional and corrupt. 'He (Prime Minister Karki) has no right to do anything other than election activities. Therefore, it is necessary to stop other work other than that. For example, he recalled the ambassador. There can be many other things,' he said, 'An interim order should be issued focusing on this issue.' 

Immediately after, Judge Kumar Regmi asked, ‘Is it also related to the fact that this government cannot hold elections?’ To the same question, Chief Justice Raut also added, ‘If it means not doing anything, wouldn’t there be a situation without a government?’ In response, Senior Advocate Pokharel mentioned that doing nothing other than running the daily administration would result in nothing. His argument was that the work done by the government that is not recognized by the constitution would be tainted. 

After that, when Advocate Dilli Mainali, who came to the debate, began to explain in detail, Judge Malla asked why the interim order should be issued. ‘How to view the current unusual situation and what to do about the interim order? Please suggest us on this,’ Malla said. In response, she argued that the government should be stopped from doing far-reaching important work since it does not have the authority to do all the work now. Advocate Dharmaraj Regmi said that a conclusion should be reached on whether a government can be formed outside Article 76 of the Constitution or not, and whether a person who is not a member of the House of Representatives can become the Prime Minister and dissolve the government or not. He claimed that constitutional provisions were not followed in these processes. He also demanded that the bench issue an order to stop the unconstitutionally appointed government from doing any work other than elections. 

Law student Ayush Badal argued, claiming to be the Gen-G writ petitioner. He claimed that the government formed after the Gen-G movement failed to include all Gen-Gs. Arguing that the formation of the government was unconstitutional, he demanded its annulment. Stating that the constitution states that sovereignty is vested in the people, he said that he had come to the court after the process prescribed by the constitution was not followed. ‘The constitution does not recognize Sushila Karki as anything other than the former Chief Justice,’ he said. ‘The act of dissolving the House of Representatives immediately after Karki became the Prime Minister is also unconstitutional. The voice of the Gen-G who came to this court should also be heard.’ 

Former Attorney General Khamba Bahadur Khati argued that the President does not have the inherent right to appoint the Prime Minister. ‘There is only one article in the constitution regarding the formation of the government. But that has not been mentioned. There has been no agreement with anyone. The Prime Minister's recommendation has been said,' he said, 'The constitution does not envisage the President forming a government as a protector. This is an unconstitutional act. Only those who are elected through elections can be made Prime Minister.' 

In past cases regarding the dissolution of the House of Representatives, the court had said that an alternative government should be formed, but now that practice is no longer in place, and the former Chief Justice has been made Prime Minister unconstitutionally, he argued. 

After listening to Khati's argument, Judge Regmi asked, 'Was there an option to form another government?' Khati replied that that opportunity had not been given. 

Former Attorney General Khamba Bahadur Khati said that the court had to see whether the constitution was alive or not. He demanded that the Supreme Court give a decision through regular hearings since the government was formed by exercising powers not provided for in the constitution. Arguing on behalf of Yubaraj Safal, senior advocate Surendra Bhandari demanded that an order be issued to investigate the incidents of 23 and 24 Bhadra and to investigate all those responsible for it, including the then Prime Minister KP Sharma Oli, Home Minister Ramesh Lekhak, and the security chief. He mentioned that the constitution should be amended as per the demands of Gen-G and that only the parliament can do that and therefore it should be reinstated. He demanded that an order be issued to address all the demands of Gen-G by going to the constitution and parliament. 

Former president of Nepal Bar Gopal Krishna Ghimire reminded that in all past dissolutions, there has been a practice of continuously debating and concluding the debate by setting a time limit. He argued that a member of parliament should become the Prime Minister and that a former Chief Justice cannot become the Prime Minister. He demanded that the unconstitutionally formed government should be nullified and an order be issued to reinstate the parliament through continuous hearings. Judge Regmi also asked him, ‘What is the statement issued by the President on 28 Bhadra saying that the constitution has been saved? Were the times comfortable?’

Advocate Anantaraj Luintel argued that the President issued a second statement in defense of Sushila Karki after he unconstitutionally appointed her. He emphasized that an all-party government should be formed by restoring the parliament. Immediately, Chief Justice Raut asked, ‘Does this constitution allow the formation of a national government?’ In response, Luintel claimed that the current government should be dismissed and an all-party government formed after restoring the parliament would be a proper solution and would be in accordance with the constitution. Advocate Mukunda Adhikari demanded that an interim order be issued to stop the work of the Election Commission related to the preparation for the elections. ‘The commission has prepared to spend billions of rupees, this should be stopped,’ he said.

After Adhikari, advocates Kirtinath Sharma, Bikash Bhattarai and others argued. During that, Chief Justice Raut asked why the lawmakers did not come to court with the issue and demand of restoring the parliament. He focused on the situation on 23 and 24 Bhadra and said, ‘Were the times normal then? Was there a way out of the constitution after Bhadra 24? What was the situation of Singha Durbar, the Supreme Court, and the Parliament? How much could the constitution consider in that situation, when the protests during the Gen-G movement were so intense?’

5 questions raised by the lawyer