The Question of the Prime Minister’s Prerogative

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The Question of the Prime Minister’s Prerogative

The right to dissolve the lower house is considered to be a prerogative of the Prime Minister in any Westminster-style parliamentary system. Many believe the current political quagmire stems from the removal of this privilege in the 2015 constitution.


--BY VISHWASH THAPA

Presenting a written justification in the Supreme Court on January 3, Prime Minister KP Sharma Oli has claimed that the dissolution of the House of Representatives is a political decision which doesn’t come under the purview of the judicial review.

He has been reiterating his position in different forums. In his address to the National Assembly on January 10, Oli said the Supreme Court should issue a verdict saying dissolution is purely a political issue. He and his party people have been claiming the Lower House will not be reinstated because they see no grounds for it.

The Constitutional Bench of the Supreme Court is continuously hearing 13 different writs challenging December 20’s decision of President Bidya Devi Bhandari to dissolve the Lower House and call the midterm elections on April 30 and May 10 based on the recommendation of the Oli government. Over 250 lawyers are advocating against the dissolution saying it is unconstitutional while the Office of the Attorney General backed by over a dozen lawyers are defending the dissolution.

Those claiming the decision to dissolve the House unconstitutional are arguing the Constitution of Nepal doesn’t allow a majoritarian government to dissolve the House of Representatives. They are basically citing Article 76 of the statute which says the president can dissolve the House when there is a hung parliament and there is no possibility of government formation.

Not just Oli’s dissidents and the writ petitioners and their seconders, former chief justices of the apex court, too, have claimed the dissolution is unconstitutional. They have been claiming the statute deliberately has ended the prerogative of the prime minister to dissolve the Lower House with an aim to maintain stability in the country.

The video clips of former Chairperson of the Constituent Assembly Subash Nembang and Attorney General Agni Kharel, who also is a former law minister, where they claim that ending the prime minister’s prerogative to dissolve the House is one of the salient features of the new constitution.  

However, there is also a voice not just among Oli supporters but also among academicians that, in a Westminster-styled parliamentary democracy, it is an inherent right of the prime minister to dissolve the House of Representatives when he/she is not comfortable in functioning as an executive head of the country. “If we are adopting the Westminster system, it is wrong to say Oli has no authority for House dissolution,” said Hari Belbase, an advocate who supports Oli.

Similar is the view of Pushpa Raj Adhikari, a professor of Political Science in Tribhuvan University, who says what a prime minister would do if he is not allowed to function independently. “There are set principles in politics which have not been followed while drafting,” he said. “I don’t see a problem in Oli’s move. Rather it’s the problem in the constitution.”

He says the 2015 constitution has borrowed many provisions from the constitutions of different countries, therefore it is lacking originality which has created the problem. In the course of the hearing, the justices including Chief Justice Cholendra Shumsher Rana have been asking what would a prime minister do if he is not comfortable working and how can the decision to hold the elections be wrong in a democracy.

Despite the comparatively short parliamentary history, this is the fifth time that a head of state has dissolved the lower House as per the recommendation of the Prime Minister. It started with then Prime Minister Girija Prasad Koirala in 1994 followed by Manmohan Adhikari a year later in 1995. Similarly, then Prime Ministers Surya Bahadur Thapa and Sher Bahadur Deuba dissolved it in 1998 and 2002 respectively. The decisions were challenged in the Supreme Court every time, but it upheld Koirala’s and Deuba’s decision and rejected the decision by Adhikari and Thapa.

The Constitution of the Kingdom of Nepal 1990 had a clear provision on any dissolution carried out by a prime minister. Its Article 53 (4) said his majesty may dissolve the House of Representatives on the recommendation of the prime minister. However, the court rejected the decision by two prime ministers saying they dissolved the House though there was a possibility to form the government even when they were in power.

Even now there is a claim that Oli dissolved the House without allowing the parliament to explore the possibility of forming another government if he had failed to prove the majority in the floor test. Dinesh Tripathi, a senior advocate who is one among 13 petitioners challenging Oli’s move, says the House of Representatives was victimsed in the dispute within the Nepal Communist Party. He said Oli, if he had respect to the constitution, would have tried to garner support from Nepali Congress and the Madhes-based parties to prove his majority even if his fellow comrades Pushpa Kamal Dahal and Madhav Kumar Nepal left him.

“Even a layman can say Bhandari and Oli have taken unconstitutional moves. There is no ground for the Constitutional Bench to uphold the decision,” he said. But those supporting the dissolution, however, argue that there is ample room for the court to issue the verdict in favour of the dissolution.

Belbase says the 1990’s constitution nowhere said a minority government cannot dissolve the House, but the Supreme Court’s interpretation presented one of the strong arguments to reject Adhikari’s and Thapa’s decision. “This proves the Constitutional Bench has every authority to interpret that an elected government has no option but to go for a fresh mandate from the people when it cannot function independently,” he said.

As the hearing continues both sides are putting their arguments for the plaintiffs and defendants, and the Supreme Court will take its decision based on the constitutional provisions and the arguments from both sides. It has also sought the original copy of the Cabinet’s decision and prime ministers’ recommendation for the dissolution along with the record of the time when the no confidence motion was registered in the parliament. The court has also demanded the record that portrays the strength of the different parties before the House of Representatives was dissolved.

The future political course of the country will depend on the Supreme Court. Even if it rejects the decision, the ongoing argument has definitely raised the debate whether a prime minister in a parliamentary setting has the inherent authority to dissolve the House of Representatives and opt for a fresh mandate if there is no environment for him to function freely.

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