Questions galore before the Supreme Court as it hears House dissolutionHow the Constitutional Bench looks into arguments from the petitioners and defendants and how it passes a verdict will help define the constitution, experts say.
Prime Minister KP Sharma Oli’s two decisions to dissolve the House of Representatives, in a span of less than six months, now have raised questions about the relevance of the six-year-old constitution, and experts and analysts say there are some crucial questions the Supreme Court needs to answer to safeguard the constitution.
As many as 30 petitions are being heard by the Constitutional Bench of the Supreme Court against the May 21 House dissolution. Unlike in the past, when Oli’s December 20 House dissolution was challenged, the bench needs to minutely look into at least half a dozen issues.
Legal experts say what the Supreme Court says in its verdict on this House dissolution will set some precedents which will be crucial not only in defining the constitution but also in upholding and protecting it.
“The fate of our constitution lies in the hands of the Supreme Court,” said Bhimarjun Acharya, an advocate who specialises in constitutional law. “We have been saying all along that the prime minister and President’s actions are unconstitutional. But what if the court endorses the House dissolution? We will have a completely different interpretation of the constitution.”
When Oli recommended the House dissolution back in December and President Bidya Devi Bhandair endorsed it, the arguments were focused on whether a majority prime minister can dissolve Parliament.
That the Supreme Court on February 23 overturned Oli’s decision, thereby also overturning the President’s endorsement, and restored the House, it set a precedent that a majority prime minister cannot dissolve the House. The bench in its verdict observed that the House cannot be dissolved until the constitution provides for alternatives to form a government.
Nepal’s constitution has laid down four provisions for formation of government–Article 76 (1), Article 76 (2), Article 76 (3) and Article 76 (5).
Though Oli was elected Prime Minister under Article 76 (2) in February 2018 with the backing of the Communist Party of Nepal (Maoist Centre), he automatically became a prime minister under Article 76 (1) after May 18, 2018–the day the CPN-UML and the Maoist Centre merged to form the Nepal Communist Party (NCP).
But when, on March 7, the Supreme Court invalidated the Nepal Communist Party (NCP) and revived the UML and the Maoist Centre, political equations changed. After Oli failed his trust vote on May 10, no parties could form the government under Article 76 (2), hence he was appointed prime minister again under the provision of Article 76 (3).
With three articles exhausted, there was one last provision provided by the constitution to appoint a prime minister, failure to which would lead to House dissolution.
Experts say Prime Minister Oli and President Bhandari, however, did not let Article 76 (5) come into play. Because of this, according to them, so many questions have been raised, which should be addressed by the Supreme Court.
Oli’s House dissolution recommendation followed President Bhandari’s refusal to recognise claims by him and Nepali Congress President Sher Bahadur Deuba to form a government under Article 76 (5).
Questions now have been raised whether Oli, in first place, could have recommended invocation of Article 76 (5) without resigning as prime minister appointed under Article 76 (3), which demanded that he go for a confidence vote in the House. The bench also needs to examine if the President’s actions can be a subject of judicial review. The bench also needs to see if the President has the right to reject claims to the post of Prime Minister by individual lawmakers under Article 76 (5).
Experts say all these issues are extremely important because the Prime Minister and the President seem to have been working in cahoots to trample upon the constitution and willfully interpreted the provisions.
“This time around, the questions to be settled are more interesting–and important–compared to the issues that were raised when the House was dissolved last time,” said Anup Raj Sharma, a former chief justice who also led the National Human Rights Commission. “One of the important issues is how to deal with the demand [of the opposition alliance] to appoint Deuba as prime minister.”
As many as 146 lawmakers, including 23 from Oli’s UML party, of the opposition alliance have filed a petition at the Supreme Court demanding that the Parliament be restored and Deuba be appointed Prime Minister because he had provided signatures of 149 Members of Parliament to the President on May 21.
According to Sharma, last time the court just had to see if a majority Prime Minister could dissolve the House. So the court said a majority Prime Minister cannot dissolve the House and reinstated it.
“This time, the bench needs to explain the process between Article 76 (3) and Article 76 (5),” said Sharma. “The bench will have to make it clear if the Prime Minister can skip Article 76 (4), which demands a vote of confidence, and invoke Article 76 (5).”
Lawyers arguing on behalf of Oli have said appointing someone in the capacity of a lawmaker–not in the capacity of the leader of any political party–as Prime Minister with the support of individual lawmakers would be tantamount to creating a party-less system.
But those arguing on behalf of the petitioners say Article 76 (5) was envisioned to enable every lawmaker to lay claim to the post of Prime Minister. The issue is complicated as Article 76 (5) is tied with Article 76 (2), and lawyers have different opinions. Experts say the court verdict will shed light on this confusion as well, as many say if invoking Article 76 (5) meant returning to Article 76 (2), then Article 76 (5) would be completely irrelevant. And if Article 76(5) is irrelevant, then why the drafters decided to have this provision in the constitution.
Balaram KC, a former Supreme Court justice, said that the bench also needs to take a deep dive into the legislative intent and how the drafters of the constitution tried to avoid frequent House dissolutions.
“Frequent House dissolutions have been a challenge in Nepal,” said KC. “Therefore the court needs to interpret Article 76 (2) to Article 76 (7).”
As per the constitution, a Prime Minister appointed under Article 76 (5) must secure a vote of confidence as per Article 76 (6), failing which, as per Article 76 (7), he could recommend House dissolution and declare polls so as to elect a new House of Representatives within six months.
Whether the President’s actions are above a judicial review is also a major issue that the court needs to settle.
Those arguing on behalf of the defendants say Nepal’s law says any action taken by the President–when in office or after losing the post–cannot be examined in any court of law. They have been laying stress on this argument to make a case that the President’s decision to disqualify claims of both Oli and Deuba cannot be challenged in the court.
Experts say how the court responds to these arguments will set a precedent –whether the Head of State is above the constitution.
According to Acharya, the constitutional lawyer, if the court untangles the confusion surrounding Article 76 (5), in doing so, most of the questions will be answered, as everything revolves around this provision.
Sharma, the former chief justice, said the court verdict will have a long-term impact, as every point the constitutional bench makes will be a precedent.
“The Supreme Court is the final arbiter of the constitution,” said Sharma. “What it says will help everyone understand the constitution. It, however, will take months to analyse the effects of the court’s decision.”