7 MIN READ
As the Constitutional Bench of the Supreme Court begins the continuous hearing of at least 12 petitions filed against the December 20 dissolution of the Lower House by Prime Minister KP Sharma Oli, questions remain regarding the constitutionality of the chief executive’s actions. While previous constitutions had included a provision that allowed the prime minister to dissolve the House and call for fresh elections, the current 2015 constitution has pointedly excluded that clause.
The Office of the President, while approving of Oli’s action, had cited Article 76 (1) and (7) and Article 85 of the Constitution. While Article 76 (1) says that the “President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives
as the Prime Minister”, Article 76 (7) allows the President to “on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election”. Article 85 refers to the term limit of the elected House of Representatives.
While the current government’s legal team has argued that Oli and Bhandari are both within the bounds of the constitution, legal experts, including four former chief justices of the Supreme Court, have argued that the move is unconstitutional under the current constitution.
Lawyers for the petitioners have argued that the Supreme Court take into account the recordings of discussions by the second Constituent Assembly’s Constitution Drafting Committee to better understand the intentions of the drafters.
The Record spoke to a number of former Constituent Assembly members who were directly involved in the constitution-drafting process to gain some insight into their intent while writing the statute.
Before promulgating the Constitution, we concluded that the prime minister would not be allowed to dissolve Parliament unless the Parliament itself was unable to form a new government (see Article 76 of the Constitution). This provision was included in the Constitution considering the royal coup [of 2005] and frequent dissolutions of the Parliament after the restoration of democracy in 1990. Past constitutions were wrong to allow the head of government to dissolve Parliament.
There was no parliamentary obstruction to the prime minister [Oli]. The government’s policies and programmes were endorsed by Parliament and everyone was supporting him in dealing with the Covid-19 crisis. He [Oli] dissolved Parliament after failing to resolve the party's internal issues, in a completely unconstitutional move. What he did was undemocratic and that is why seven of us ministers resigned en masse.
Now that Prime Minister Oli has dissolved the house by invoking Article 76, the main question is whether the prime minister should have opted for other options.
The situation was created by an internal party conflict. At a time when Members of Parliament from his own party had registered a vote of no confidence against the prime minister, he had two options: resign or go for a fresh mandate. He decided to go for the latter.
Now that the election date has been decided, it makes little sense to discuss how constitutional provisions were thought out while writing the constitution. However, concerns were raised regarding the prerogative of the prime minister in a parliamentary system. It is global practice that the prime minister in a parliamentary system be entitled to dissolve the House.
Given the current political development, the prime minister’s move was right. There is no need to interpret the Constitution as the matter is before the Supreme Court. However, it is not true that the Constitution forbids House dissolution. In fact, when the Constitution was being written, I had demanded a footnote on certain provisions, such as Article 76.
All I want to say is that this constitution guarantees the prime minister’s rights to dissolve the House and call a new election. The Constitution has not stated that the prime minister cannot dissolve the House and declare midterm elections, which leaves room for argument. And we have precedents for dissolution of the House.
Furthermore, what the Constitution does clearly mention is that a motion of no confidence cannot be tabled until two years after the appointment of the prime minister (see Article 100).
I don’t want to comment as the case is before the Supreme Court. I am also a former bureaucrat so I would prefer not to speak on the matter for now.
In consideration of the frequent changes in government, the new constitution included some restrictive provisions limiting the prerogative of the prime minister. It was well discussed and we agreed on the provision.
However, the prime minister is entitled to dissolve the House -- only after fulfilling certain conditions as described in Article 76. The Constitution does not prevent the prime minister from declaring midterm polls too. What is important is the conditions under which he can do it. His proponents argue that it is the prerogative of the prime minister in a parliamentary system to dissolve the House. The Constitution also has a provision allowing a motion of no confidence only after two years of the prime minister’s appointment, which is also against parliamentary practices.
But we have those provisions because we agreed to include them. So the prime minister’s move is unconstitutional and undemocratic. This has been our party’s [the Nepali Congress] unanimous decision. However, we wait for the court verdict and will abide by it even if it is not in our favour.
After 2008’s Constituent Assembly elections three types of forms of governance were debated: directly elected president (Maoists), directly elected prime minister, and parliament elects prime minister (Nepali Congress and other forces). Later, the dispute resolution committee headed by Pushpa Kamal Dahal agreed to adopt a mixed model, which we also call the German model.
To ensure completion of the mandated five-year term of Parliament, we endorsed a provision that bars political parties from registering a vote of no confidence against the prime minister for at least two years. Further, the party tabling the motion needs to show a majority in Parliament before the head of government can be replaced and cannot initiate another motion for a year after the first failed attempt.
However, all the committee members were against dissolution of the Parliament before completing its five-year term. Anyone who reads the Constitution won’t say that the prime minister has the right to dissolve Parliament, that too when he commands a majority government. The Constitution has already rejected the prime minister’s prerogative to dissolve Parliament. The prime minister went against the spirit of the Constitution.
Nepal’s Parliament has been dissolved four times in the past before completing its mandated full term. The Supreme Court has sometimes revoked the government’s decision but not always. The prime ministers often misused their prerogative rights and dissolved Parliament whenever they felt uncomfortable running the government. Apart from political instability, frequent dissolutions caused huge economic losses while conducting mid-term elections.
So we have removed this provision from the 2015 Constitution. The parliamentary system was defamed because of the prerogative of the prime minister. That’s why we included a new provision in the Constitution to ensure stability.
We have included six clauses in Article 76 of the Constitution. Based on these provisions, the Parliament can attempt at least six times to elect a new prime minister. The prime minister can only dissolve Parliament if all measures fail.
The committee never discussed giving prerogative right to the prime minister so that he can dissolve Parliament whenever he wishes. I hope the parliament-secretariat has audio recordings of the discussions during the finalisation of those provisions. The Supreme Court can ask the secretariat for the recordings and study the intent of lawmakers.
I had objections over many provisions in the draft of the Constitution. I tore pages of the draft handed out by Krishna Prasad Sitaula. This was the Constitution drafted by hill Bramhan Chhetris. However, the Constitution was promulgated despite our reservations. Despite all that, the prime minister’s move to dissolve the House is unconstitutional and undemocratic. His move contradicts the very same constitution that the prime minister and his party had hailed as the “best constitution in the world”.
Bhadra Sharma Bhadra Sharma is a Kathmandu-based freelance journalist. He is also co-author of the book 'Impunity and Political Accountability in Nepal'.
8 min read
Politicians have mastered the art of exploiting the nexus between themselves and prosecutors to always remain beyond the arm of the law
5 min read
Unless Nepali migrant workers are allowed to vote from abroad, we won’t have a truly representative democracy
4 min read
Pandemics affect men and women’s access to food and nutrition disproportionately
Week in Politics
5 min read
The week in politics: what happened, what does it mean, why does it matter.
5 min read
Despite constitutional provisions, inaction on supporting laws has meant that individuals are routinely denied citizenship through their mothers.
7 min read
Navigating Nepali citizenship, Tibetan heritage, and a dependence on China
12 min read
Covid-19 has highlighted the potential benefits of small-scale family farming
4 min read
In recent times, the Supreme Court, which has handed down many controversial verdicts, seems to be the only state organ that cares about public health