by Hari Prasad Shrestha 24 February 2021
Nepal’s Supreme Court has reinstated the House of Representatives by quashing Prime Minister KP Sharma Oli’s decision.
The bench consisting of Chief Justice Cholendra Shumsher Rana and 4 other justices unanimously ordered the government to summon the House session within 13 days.
The mandamus recites the order that needs to be implemented immediately.
The Constitutional Bench also observed that the decision to dissolve the House was unconstitutional as there still was a possibility of forming a new government. It argued that the constitution was different from other parliamentary democracies, and the prime minister did not have the power under the Constitution to dissolve the House.
On 20 December 2020, President Bidya Devi Bhandari dissolved the House of Representatives on Prime Minister KP Sharma Oli’s recommendation. As a result of internal conflict in the ruling Nepal Communist Party (NCP), KP Sharma Oli recommended the dissolution before a no-confidence motion tabled by another faction of the ruling party led by former Prime Minister Pushpa Kamal Dahal.
The dissolution sparked protests on the streets by the NCP dissident camp and the main Opposition Nepali Congress with slogans being shouted against the President and the Prime Minister.
13 petitions were filed at the Supreme Court, challenging the constitutionality of the move. All petitions are being heard by the constitutional bench, including the Chief Justice and 4 other justices.
As there is no provision of dissolution of the house in the constitution by the prime minister, the public and almost all society sections were completely against it and in favor of reinstatement of House of representatives except government fraction.
Moreover, an amicus curia, who was not a party to a case but assisted the court by offering information and expertise, its 4 members said that Nepal’s Constitution deprives the country’s executive head of prerogative power to dissolve the House. This is not a political issue but a constitutional one. The court should interpret it; accordingly, they said. However, on the contrary, one member argued that the prime minister had the prerogative to dissolve the House.
During discussions in the court, Prime Minister Oli himself had submitted a written explanation to the Court that it was within the prime minister’s prerogative to dissolve the House.
This house dissolution crisis had created a problem or conflict in the government’s function and provisions in the constitution. Politically, the constitutional crisis could have led to administrative paralysis and instability of the government, the loss of political legitimacy, or the start of violent conflicts.
Politically, a constitutional crisis can also lead to administrative paralysis and collapse of the government and could be the cause of the loss of political legitimacy or the start of civil war.
On its 20 Dec 2020 press release, the President of Nepal’s Office declared dissolution of parliament, citing Article 76(1) (7) and Article 85 of the constitution and norms and spirit of parliamentary system and practices of different countries. However, Article 76(7) permits the dissolution only if parliament is incapable of forming a government even after all options offered in Article 76 are exhausted. Article 85(1) of the Constitution states: “Unless dissolved earlier according to this constitution, the House of Representatives’ term shall be five years.” This Article should be harmoniously read with Article 76 (7), which provides unsuccessful parliament attempts to choose PM as a condition precedent.
This was not the first time; the prime minister has dissolved the parliament. However, previously, many times, it had been used by the prime minister as its prerogative power. In 1994, Prime Minister Girija Prasad Koirala made a recommendation for the House dissolution, which the Supreme Court endorsed, citing that the Constitution does not provide any preconditions for the dissolution of the House of Representatives by the Prime Minister.
Moreover, in the year 1995, the Supreme Court rejected an attempt to dissolve parliaments by Prime Minister Manmohan Adhikari, citing that 96 members have filed a no-confidence motion against the Prime Minister. If there is the possibility of an alternate government from the existing parliament, then the house’s dissolution cannot be made.
All opposition leaders have welcomed the decision of the Supreme Court, including the government. Analysts have welcomed the Court’s decision, saying it sets a precedent for the future and firmly established the separation of powers and the judiciary’s independence.
Former PM and leader of Nepali Congress Sher Bahadur Deuba welcomed the court’s decision to reinstate the house of representatives.
Meanwhile, Pushpa Kamal Dahal, who leads the NCP faction, welcomed the Court’s decision.
Foreign Minister Pradeep Gyawali also said his party would honor the Court verdict because it believed in the Constitution and the rule of law.
Before the dissolution of the representatives’ house, PM Oli was losing ground due to intense criticism from his opponents in the party and pressure to step down from the prime minister’s post for the past few months. He thus took a drastic measure directed at saving his government’s fall.
Immediately after political turmoil in Nepal and house dissolution, a delegation led by Guo Yezhou, vice-minister of the Chinese Communist Party’s International Department, arrived in Nepal, and they met with major political leaders, including PM Oli and NPC leader Prachanda. The group asked NCP not to split and advised Nepal’s political stability. However, their efforts went without success as Oli momentarily skidded his ground from north to south after China showed support for unity in NCP rather than whatsoever be in the government.
On the other hand, India has been watching the developments in Nepal closely and has always stated that Nepal’s political stability is in India’s interest.
Given the downturn in bilateral relations between the two countries over the map row recently, it will be interesting to see how India will react to Nepal’s latest developments, a country it considers its traditional sphere of influence.
Based on current political chaos, Nepal has been trapped between two neighbors. However, after Supreme Court decided to reinstate the house gave great relief to the nation from unexpected political disasters.
The court’s verdict rejecting the mid-term poll has bought the constitution on track to a great extent. However, some political analysts say that the conflicts between two rival communist groups may bring instability in the political system and more challenges in forming a new government.
Pushpa Kamal Dahal, leader of a CP fraction, opposed to Oli, said he would now start talking with the smaller parties to establish a majority in Parliament and not make a bid for prime ministership. Still, if other parties would like, he would be willing to take the job. Dahal ruled out reuniting with the Oli faction. This leaves the possibility of the Dahal faction allying with the opposition Nepali Congress and smaller parties to form the next government.