House dissolution hearing in final leg as amicus curiae starts presenting briefThe first of the five friends of the court in his arguments wavers talking about ambiguities in the constitution rather than the legality of KP Sharma Oli’s move.
The Constitutional Bench of Supreme Court has started hearing the opinions of an amicus curiae it had invited in relation to Prime Minister KP Sharma Oli’s December 20 House dissolution decision.
As per the bench’s call, the Nepal Bar Association and Supreme Court Bar have sent five experts as members of the amicus curiae.
Senior advocate Badri Bahadur Karki, who represents the Nepal Bar Association, presented his opinion on Tuesday.
Karki argued that though the prime minister has the authority to dissolve the House in the parliamentary system, it was done with a mala fide intention.
“Therefore, there has to be clarity—whether our constitution says we practise the parliamentary system and if the prime minister possesses inherent power to dissolve the House,” he said.
Karki, also a former attorney general, said Prime Minister Oli’s move was triggered by a dispute within his Nepal Communist Party. “The House of Representatives cannot be dissolved due to an internal dispute in the ruling party.”
He argued that the prime minister needs to present constitutional grounds for dissolving the House.
“But the prime minister has failed to do so,” said Karki.
Karki is among the five senior advocates picked for the amicus curiae by the Nepal Bar Association and the Supreme Court Bar as per the request of the Constitutional Bench on December 25.
Bijay Kant Mainali from Nepal Bar Association and Satish Krishna Kharel, Purna Man Shakya and Gita Pathak Sangraula from the Supreme Court Bar are other senior advocates in the amicus curiae.
Karki was given the entire day to present his views on whether or not President Bidya Devi Bhandari’s decision to dissolve the lower house on the Oli government’s recommendation was constitutional.
Karki by and large made wavering statements.
While Karki said that Oli didn’t have constitutional grounds for House dissolution, he argued that there is ambiguity in the constitution which needs to be interpreted clearly by the Supreme Court.
“The constitution in principle allows dissolution with some conditions attached,” said Karki. “The court will have to clear up the ambiguity based on constitutional provisions.”
Oli has cited Articles 85, 76 (1) and 76 (7) for his House dissolution move and those arguing on behalf of the petitioners who have challenged the decision argue that none of the articles allows him to do so.
Of the cited articles, only 76 (7) talks about dissolution, but it allows House dissolution only by a prime minister who fails to win a vote of confidence after being elected in a hung parliament.
Oli, however, is a majority prime minister. And by his own admission, he had the support of 64 percent of lawmakers.
Rather than providing clear arguments on the constitutionality of the House dissolution decision, Karki spent most of his time saying the bench needs to clear up the ambiguities of different articles so as to reach a conclusion.
Karki went on to say that even Article 74, which talks about the form of governance, needs an interpretation.
Article 74 says: “The form of governance of Nepal shall be a multi-party, competitive, federal democratic republican parliamentary system based on plurality.”
Some of the advocates who pleaded on behalf of Oli too had argued that since Nepal has adopted the parliamentary system, the prime minister enjoys inherent power to dissolve the House.
Drafters of the constitution, however, say Nepal has adopted a modified version of parliamentary system and that provisions granting inherent power to the prime minister to dissolve the House were deliberately not kept in the constitution, given the past experience of frequent attempts to dissolve the House.
On some occasions, Karki even contradicted his own statements.
In his concluding remarks, he said Oli’s move was unconstitutional. But prior to that, he said Article 53 (4) of the 1990 Constitution of the Kingdom of Nepal is present in Article 85 of the present constitution, albeit in a silent form.
Article 53 (4) of the previous constitution stated: “His Majesty may dissolve the House of Representatives on the recommendation of the prime minister. His Majesty shall, when so dissolving the House of Representatives, specify a date, to be within six months, for new elections to the House of Representatives.”
Article 85 of the present constitution states: “Unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.”
It, however, was not clear how Karki drew parallels between the two articles.
Justice Anil Kumar Sinha, one of the members of the Constitution Bench headed by Chief Justice Cholendra Shumsher Rana, then asked Karki to elaborate.
“Wasn’t it [the House dissolution] kept silent deliberately [in the constitution]?” Sinha asked.
Karki did not elaborate, rather he repeated that Article 85 is silent on House dissolution.
A Supreme Court official said Karki tried to bring up constitutional ambiguities before the bench but his arguments were even more ambiguous.
“Most of his arguments can be interpreted both ways—for or against the dissolution,” said the official who has followed the ongoing hearing closely on condition of anonymity, as he was not allowed to comment.
Other senior advocates from the amicus curiae will present their views starting Wednesday. The hearing is likely to conclude on Friday.
As many as 13 petitions have been filed against Oli’s House dissolution move, claiming the constitution doesn’t allow a majority prime minister to do so.
Conducting the preliminary hearing on December 23, a single bench of Chief Justice Rana had decided to send them to the Constitutional Bench.
The Constitutional Bench started the hearing on January 15.
In between, Justice Sapana Pradhan Malla replaced Hari Krishna Karki, after he decided to recuse himself from hearing on the grounds that he was once Oli’s counsel in the capacity of the attorney general.
Justices Bishowambhar Prasad Shrestha and Tej Bahadur KC are other members of the bench.
“The bench could take at least a week after the hearing concludes to issue its verdict,” said Kishor Poudel, a communication expert at the Supreme Court. “We can expect the verdict by the end of this month.”