House reinstatedConstitution has prevailed, parties and analysts say.
In a landmark decision, the Supreme Court on Tuesday overturned Prime Minister KP Sharma Oli's December 20 decision to dissolve the House of Representatives and asked the authorities to summon a meeting of Parliament within 13 days.
The Constitutional Bench led by Chief Justice Cholendra Shumsher Rana observed that the decision to dissolve the House was unconstitutional.
In his letter recommending President Bidya Devi Bhandari that the House be dissolved, Oli had argued that he controlled the majority in the House, that there was no possibility of forming a new government and that the country needed a fresh mandate of the people to ensure stability.
The Rana-led bench, which had Justices Sapana Pradhan Malla, Anil Kumar Sinha, Bishowambhar Prasad Shrestha and Tej Bahadur KC as members, passed a unanimous verdict, which analysts and political parties described as a sound victory for the constitution.
The bench said that the government-cited Articles 85, 76(1), 76(7) failed to provide sufficient grounds to dissolve the House.
Though Oli had said he was forced to dissolve the House because the infighting in his Nepal Communist Party created obstacles for him to govern, the bench refused to dwell on the intentions.
Since the dissolution was unconstitutional, the House of Representatives is capable of performing its duties after being reinstated, the bench said in its verdict.
“Citing the previous constitutional practices, the drafters of the constitution have not imagined that the leader of a party having a majority in Parliament can dissolve the House,” the verdict reads. “Article 76(7) comes into play only when Parliament cannot produce a government.”
The bench also rejected arguments that Article 85 allows the prime minister to dissolve Parliament, saying that what is not written in the constitution cannot be exercised.
Article 85 (1) says unless dissolved earlier pursuant to this Constitution, the term of the House of Representatives shall be five years.
Experts on constitutional matters and former Supreme Court justices hailed the verdict, describing it as “bold and impartial”.
“I would say today’s decision of the Constitutional Bench is bold, effective, independent and impartial,” said Balaram KC, a former Supreme Court justice. “We must salute the five justices for protecting the constitution which was about to get derailed.”
According to KC, the December 20 move had not only thrown the country into uncertainty but also unleashed fear among the people.
“Since the President was equally responsible for bringing the country into a state of confusion, she should seek an apology from the people for failing to accomplish her duty,” KC told the Post.
KC said the verdict has once again reestablished judicial independence and faith in the judiciary and instilled in everyone a sense that the Supreme Court is helmed by competent justices.
“This is also a lesson for any prime minister now that they should refrain from breaching the constitution, which is the supreme law of the land,” said KC.
Tuesday’s verdict comes as a major setback for Oli who until Monday appeared confident about his decision.
Oli’s House dissolution move and call for elections on April 30 and May 10 were a cause for concern for many also because if his decision had been endorsed, it would have left not only the people and parties divided but the state too.
His December 20 decision had triggered a chain of events, bringing the chiefs of all key state agencies at odds with each other.
The verdict came just when Oli was celebrating his 70th birthday with leaders close to him.
An aide to Oli said that the prime minister has accepted the court verdict and is ready to face the situation.
“The prime Minister has accepted the court verdict. He has full faith in the judiciary,” Rajan Bhattarai, Oli’s foreign relations adviser, told the Post.
Asked if Oli is planning to resign, Bhattarai said that it was a political question and that it would be discussed later.
“The country has returned to the situation [before] December 20,” said Bhattarai. “This verdict will remain controversial. This verdict has invited more challenges to our system.”
Oli’s press adviser said that the prime minister is not going to resign and will face the House.
“The Supreme Court verdict is controversial but [we] have to accept it and it must be implemented,” Thapa wrote on Facebook. “This won’t resolve the political problems but would rather invite more instability.”
Tuesday’s verdict has elucidated some constitutional matters as well.
The verdict says it was the responsibility of the Constitutional Bench to look into the constitutionality of the House dissolution, which the prime minister said was taken on the basis of Articles 76 (1), (7) and 85.
Quoting Article 74, which states “Nepal shall be multi-party, competitive, federal, democratic, republican, parliamentary form of government based on pluralism,” the bench said the constitution has not limited Nepal’s parliamentary system to the traditional one as the words of the constitution should be read in a holistic manner.
Citing the preamble that states the sovereignty lies with the people and Article 2 that says the sovereignty and state authority of Nepal shall be vested in the Nepali people and it shall be exercised in accordance with the provisions set forth in the constitution and Articles 84 and 86, the court observed: “this constitution is not a reflection of the traditional parliamentary system but a document brought after long exercises by the constituent assemblies.”
Since the constitution has adopted unique provisions which contrast the characteristics of the parliamentary system, this constitution has not automatically included all the provisions of the traditional parliamentary system, stated the bench, thereby ruling out arguments that in a parliamentary system the prime minister has inherent power to dissolve the House.
Even the countries following the traditional parliamentary system have been discouraging dissolution of the House and are heading towards practising limited government, said the bench.
“Dissolving parliament despite having other options and incurring monetary burden on the people for elections cannot be considered constitutional,” reads the verdict.
The bench has issued a mandamus order in the name of the Office of the President, Office of the Prime Minister and Council of Ministers, the prime minister and House Speaker to call a meeting of the House within 13 days because Oli had dissolved the House 13 days prior to the constitutionally mandated date for summoning the next session.
“Since the decisions of the prime minister and the President to dissolve the House are unconstitutional, all activities taken after that will be annulled with a certiorari order and will have no legal effect,” the verdict reads. “As a result of the order, the House of Representatives of the federal parliament gets reinstated and is capable of performing its work.”
Since Oli had recommended prorogation of the House on July 2, as per constitutional provisions, the next session must have been called on January 1.
The constitution says the gap between the two sessions of Parliament must not exceed six months.
Bhimarjuna Acharya, an expert on constitutional matters, described the verdict as historic as it upheld constitutional supremacy.
“It has established that the judiciary is still competent and independent. The Supreme Court today also protected the sanctity of the constitution,” Acharya told the Post. “In essence, today’s historic verdict has upheld the supremacy of the constitution by quashing the arbitrariness the government was exhibiting.”
Various parties and civil society members also welcomed the Supreme Court decision, saying that it brought the country’s politics back within the constitutional framework.
Nepali Congress President Sher Bahadur Deuba said that his party had already termed Oli’s decision to dissolve the House unconstitutional, undemocratic, totalitarian and autocratic.
“The Nepali Congress respects the court’s verdict,” Deuba said in a statement.
Pushpa Kamal Dahal, chair of one faction of the Nepal Communist Party, called the verdict historic and bold.
“History will recognise this verdict,” said Dahal while addressing a function in Chitwan. “Now we will move ahead by coordinating with the political parties.”
Dahal also said that Oli must step down on moral grounds.
Madhav Kumar Nepal, the other chair of the Nepal Communist Party, described the verdict as the triumph of the people.
“I would like to thank the Supreme Court for saving democracy by giving a historic and praiseworthy verdict,” Nepal said in a tweet.
Janata Samajbadi Party chair Mahantha Thakur hailed the verdict, saying that it reestablished the fact that sovereignty lies with the people.
However, Thakur expressed concerns that yet another cycle of instability could begin as none of the parties in the House has a majority now.
Welcoming the court verdict, Brihat Nagaraik Andolan, a spontaneous movement of civil society members, said that the court ruling has put the brakes on Oli’s journey towards totalitarianism.
“The supreme court’s verdict has paved the way for political parties to resume legal political process further,” the Brithat Nagarik Andolan said in a statement. “But movement against regression will continue.”
Even though the court verdict has brought politics back to Parliament, there is no clarity yet what political course the country will take.
The Nepal Communist Party has split, but just politically and not legally. The party’s legitimacy dispute is still pending at the Election Commission. The faction claims to have around 90 lawmakers on its side. In that case, the Oli faction has around 84 lawmakers. The Congress party holds 63 seats and the Janata Samajbadi Party 32. These are the major players. When it comes to forming a new government, there are already concerns that horse-trading could begin and parties could bring back their favourite game of musical chairs.
Political commentators say the Supreme Court’s verdict has brought the constitution back on track but there are challenges galore.
“Politics is back within the constitutional framework but how it moves forward remains to be seen,” said CK Lal, a political commentator and columnist for the Post. “We are yet to see how Oli reacts. When there is a moral person in power, we can predict a few things, but we cannot make rational predictions when there is a leader who has mislaid the moral compass.”