All Eyes on the Supreme Court

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All Eyes on the Supreme Court

The dissolution of the lower house and announcement of the mid-term elections have pushed the country into a deep constitutional and political crisis. The political course now rests on the decision of the Supreme Court.

BY VISHWASH THAPA

All eyes are on the Supreme Court now. The dissident faction within the Nepal Communist Party, Nepali Congress and Janata Samajbadi Party might have been hitting the streets against President Bidya Devi Bhandari’s decision to dissolve the House of Representatives based on the recommendation of the KP Sharma Oli led government. However, even they are waiting for the apex court’s verdict.

13 writs were registered on the very day of the dissolution on December 20 and the next day which are under consideration in the five-member Constitutional Bench led by Chief Justice Cholendra Sumsher Rana. The first hearing on the writs on December 25 issued a show cause notice against the Office of the President and the government demanding a written justification for their move to dissolve the House of Representatives. The bench under the apex court has started the hearings where amicus curiae comprising the constitutional experts among the senior advocates, too is presenting its opinion.

As hinted by Rana in the first hearing, the Constitutional Bench will look if the decision of Oli government and Bhandari to dissolve the Lower House citing Article 76 (1) and (7) and Article 85 (1) of statute is valid. Along with citing the two Articles the President’s Office said the decision of the dissolution was done following the value and spirit of the parliamentary system and its practice in Nepal and other parts of the world.

While Article 76 (1) talks about the formation of the government, 76 (7) allows the dissolution of the Lower House given no party holds a majority and there is no option for a coalition government. Similarly, Article 85 (1) says, “Unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.” Oli was commanding a comfortable majority when he recommended dissolving the House.

In the show cause order the Constitutional Bench also has asked for the list of lawmakers from the House of Representatives showing their party affiliation and the strength of different political parties in the House. The constitutional experts say the ruling was made to see whether there was a possibility to form a government if the one led by Oli hadcollapsped.

The third order the court has issued is to produce the original copy that ascertains the exact time when the no-confidence motion was registered against Oli in the Parliament Secretariat on December 20, the day when the Lower House was dissolved. Though Roj Nath Pandey, spokesperson at the Parliament Secretariat, issuing a statement, has said the motion was registered at 3:30 pm, hours after the recommendation for the dissolution was made, the people close to Speaker Agni Sapkota have been claiming it was at 10:30 in the morning.

The timing is important because in 1995 the Supreme Court had taken the time of the registration of the motion as one of the points to revoke the decision of then Prime Minister Manmohan Adhikari to dissolve the House. It said as the no-confidence motion was registered prior to Adhikari’s minority government’s decision to dissolve the House and there still was a possibility to form another government even if his government collapsed, the decision to dissolve the House was invalid.

Though the opinion among the political sphere is divided on whether Oli had the authority to dissolve the House, a majority of constitutional experts, however, see it fully unconstitutional. Though it is an inherent authority of the prime minister in the Westminster system to dissolve the House, the Constitution of Nepal doesn’t give that prerogative to the executive head for the sake of political stability in the country. Although three prime ministers, Girija Prasad Koirala, in 1994, Adhikari, in 1995, and Sher Bahadur Deuba in 2002, have dissolved the House within a decade, the latest constitution has set a tough provision for it. “Oli, however, misinterpreted the provision,” said Chandra Kanta Gyawali, a senior advocate with an expertise in constitutional law. “The parliament has been made a scapegoat in the feud within the ruling party.”

The Nepal Communist Party has split into two; one led by Oli and another by party’s co-chair Pushpa Kamal Dahal and Madhav Kumar Nepal, a senior leader in the party, though it is yet to be formalised.

Experts say how the future course of Nepal’s politics proceeds depends on Supreme Court. “No matter whether the Constitutional Bench revokes or approves the government’s decision, the country has plunged into a deep turmoil and instability,” said Gyawali.

With the split in the Nepal Communist Party, no party will have a majority in the House making Nepali Congress, with 63-seats the kingmaker. Be it Oli’s party or the one led by Dahal-Nepal faction, they will need the support from the Nepali Congress to form the government. If there is a coalition government, that could continue until the general election that is two years away.

However, it is possible that the grand old party refuses to join the government seeing split in the largest party as an opportunity to increase seats and form a majority government. This will ultimately lead to the dissolution of the House constitutionally paving the way for the government to hold mid-term elections. However, that will not be possible on April 30 and May 10 as announced by Oli and it is also not sure who would be leading the election government. Because Article 73 (3) of the statute has a provision that if no party holds a majority in the Lower House and there is no possibility of forming a coalition government, the president would appoint the leader of the party with the highest number of members in the House of Representatives as the prime minister. The prime minister appointed under the provision must prove the majority vote in the parliament within 30 days, if not, the country will move for the midterm elections.

It is also possible that the apex court withholds the dissolution. The experts say that will lead to further turmoil as the protesting parties will get yet another reason for agitation. Their protest could be targeted at the apex court, along with Oli and Bhandari. Some political parties and constitutional experts have been arguing that the House is alive as Oli’s decision is unconstitutional. They have started to lobby urging Speaker Agni Sapkota to call the House meeting. The Janata Samajbadi Party delegation on December 24 met Sapkota asking him to call the House. However, as Oli and Bhandari haven’t been able to give constitutional ground for the dissolution, Sapkota’s move too would be unconstitutional, the experts argue.

They say asking Sapkota to call the House meeting means provoking him to breach the constitution. If Oli’s act is condemnable, so will be Sapkota’s, they say. The experts say everyone believing in democracy should have faith in the Supreme Court and the latter should make the decision keeping the constitutional provisions and its spirit above all.

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