House dissolution: Whether it’s lawful is now for Supreme Court to decideDespite political parties terming Prime Minister KP Sharma Oli’s move ‘unconstitutional’, in terms of its legality the final arbiter will be the court.
When Prime Minister KP Sharma Oli’s Cabinet recommended the dissolution of the House of Representatives on Sunday morning, constitutional experts, politicians and other observers were quick to label the move “unconstitutional” and called on President Bidya Devi Bhandari to have consultations on the recommendation.
But by afternoon, she dissolved Parliament and announced the dates for midterm elections . The statement from the Office of the President cited Article 76 (1) and (7) and Article 85 of the constitution and announced the dissolution in “the spirit and value of the parliamentary system and the practice within our parliamentary system and in the different countries”.
While Article 76 (7)of the constitution allows for the dissolution of the House if a government cannot be formed if no party has a majority in the House, Article 85 (1) states, “Unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.”
With the House dissolved, those opposing Oli’s move, including the faction led by Nepal Communist Party chair Pushpa Kamal Dahal and senior leader Madhav Kumar Nepal, Nepali Congress and other political parties as well as sections of the public have started approaching the Supreme Court to decide whether the dissolution was “unconstitutional”.
Since the dissolution was announced, 13 writs have already been registered in the Supreme Court against it. Of them 11 have been registered claiming the decision to dissolve the Lower House is against the constitution and therefore has asked the Supreme Court that it be revoked.
In Nepal’s history of parliamentary democracy, this will not be the first time that the doors of the Supreme Court have been knocked on following the dissolution of Parliament.
In 1994 Girija Prasad Koirala led a Nepali Congress majority government but dissolved the House following internal wranglings in his party. The court upheld the decision.
In 1995, it was the turn of Manmohan Adhikari’s CPN-UML minority government to dissolve Parliament. The court overturned the dissolution and a new government was formed.
Balaram KC, former Supreme Court justice, as a lawyer had defended the decision of the two governments in the 1990s to dissolve the House.
“There is a fundamental difference in the provisions to dissolve the House in the two statutes,” KC said. “The Constitution of the Kingdom of Nepal-1990 had given authority to the prime minister to dissolve the House but the present constitution doesn’t.”
He therefore questions the legality of Oli’s move.
“It is unconstitutional but the judiciary is the ultimate institution to ascertain that,” KC told the Post.
He said the demands of the parties that Parliament be reinstated might have political meaning but it doesn’t have a legal meaning.
The Supreme Court is starting the hearing from Wednesday.
As a final arbiter of the constitution, the five-member constitutional bench of the apex court led by Chief Justice Cholendra Shumsher Rana will make the final verdict on the matter. The other four members of the bench will be chosen by Rana from the roster of 14 Supreme Court justices.
But the constitution the justices will be interpreting this time is different than the one they did in the 1990s.
Koirala’s dissolution had been upheld by the court saying a majority government could dissolve the House as there was no option to form another government. Koirala’s party had 114-lawmakers in the then 205-strong parliament.
In the general elections that followed, Nepali Congress lost its majority and Adhikari formed a minority government. When Adhikari called mid-term polls in 1995 after dissolving the Parliament, the Supreme Court, however, rejected it saying that there were other options to form a government, therefore, the prime minister cannot dissolve the House.
KC said another strong point for the Supreme Court to issue the verdict was that a no-confidence motion had been registered in Parliament prior to Adhikari’s move.
According to him, the timing of the registration of the no-confidence motion and decision of the Oli Cabinet to dissolve the Lower House could be a strong basis for the final verdict.
There are conflicting versions of the Parliament Secretariat about the timing of the registration of no-confidence motion against Oli. While a document disseminated in the media shows it was at 10:30am on Sunday, Ashok Poudel, communication advisor to National Assembly Chairperson Ganesh Timilsina, who is an Oli ally in the ruling party, says it was registered at 3:30pm, after the President had dissolved the House.
For advocate Baburam Dahal, legal adviser to Oli, dissolution of the House is an inherent authority of the prime minister in the parliamentary system.
“Article 85 (1) of the constitution talks about the same inherent authority,” he told the Post.
Constitutional experts, however, have a different view. They say Article 85 (1) was mentioned in reference to 76 (7) which says the House of Representatives can be dissolved only when there is a hung parliament and no party garners majority to form the government
“I don’t see these provisions confusing. We expect the Supreme Court will analyse them carefully before making the decision,” Bipin Adhikari, former dean at the Kathmandu University School of Law, told the Post. “Let’s have faith in the Supreme Court which has made different landmark verdicts in the past to safeguard the constitution.”
The crux seems to be the inherent meaning of Article 85(1) and it will be up to the apex court to interpret it in terms of parliamentary practice in Nepal and across the world.
“The judiciary will explain the intention behind Article 85 (1) when it gives its final verdict,” said Ram Krishna Timilsena, executive director at National Law Campus and former registrar at the Supreme Court. “It's a fact that the prime minister in the Westminster system has the authority to dissolve the parliament. The lawyers from the government side can have that argument.”
Constitutional experts say the court can call an amicus curiae, if necessary, and make a decision clearing confusion, if there are any, about House dissolutions once and for all so that other prime ministers don’t make the same mistake again.
The amicus curiae is a group of experts comprising lawyers and experts on the constitution called by the Supreme Court whenever it considers that the issue it is looking into is a serious one and the view of experts would be helpful.
“However, the court’s verdict should ultimately be based on the constitutional provisions,” said Timilsena.
For some, there is no doubt over the legality of the House dissolution.
“The Cabinet made an unconstitutional decision and the President authenticated it,” said Adhikari. “They have wrongly cited the constitutional provisions.”
For KC, it is clear why Oli has been misguided. He was the Minister of Home Affairs in the Manmohan Adhikari Cabinet.
“Those claiming a prime minister holding a majority can dissolve the House have a hangover of the 1990's constitution,” said KC, the retired Supreme Court justice. “They should get rid of it.”