PM’s move punishable under Article 5 of the constitution
KATHMANDU, JANUARY 21
The constitutional bench of the Supreme Court today asked the Office of the Attorney General to produce the Nepal Gazette to see if the presidential order on the dissolution of the House of Representatives was published in it.
Earlier, advocates Tikaram Bhattarai and Om Prakash Aryal, who argued on behalf of the petitioners challenging the dissolution of the House pleaded before the constitutional bench of the Supreme Court that the dissolution order issued by the president’s office was illegal as it was not published in the Nepal Gazette.
Bhattarai said Prime Minister KP Sharma Oli’s decision to dissolve the House of Representatives was unconstitutional and President Bidhya Devi Bhandari had erred by endorsing it swiftly.
“It appears that the president had her pen ready to endorse the dissolution of the HoR the moment it reached her desk,” he added. Bhattarai said even kings used to consult the attorney general and other experts before dissolving the House.
He said the bench should only look into whether or not the PM’s decision to dissolve the HoR was constitutional. The bench should not be concerned whether the PM will remain in office, whether he will face a notrust motion or whether he will defeat such a motion, he added.
Aryal said Article 85 did not give the PM the power to dissolve the House and the phrase ‘unless dissolved earlier’ in Article 85 only meant dissolution under Article 76 (7).
He said Article 76 (7) contained provisions similar to those under Article 42 (4) of the 1990 constitution that allowed the minority government to dissolve the House if it failed to obtain the vote of confidence. He said Article 53 (4) of the 1990 constitution gave the prime minister the prerogative to dissolve the Lower House, but there was no such provision in the current constitution.
The current constitution focuses on the stability of the legislature and executive by provisioning that the no-trust motion cannot be moved against the prime minister in the first two years and there should be a gap of one year between two notrust motions in the Parliament, he added. He said Article 76 (7) of the constitution guaranteed that as long as the House was able to form the government, it could not be dissolved. He said the president should withdraw her House dissolution order as former king Gyanendra had done to restore the House of Representatives. He said the constitutional provision mandating a gap of not more than six months between the two sessions was the lifeline of constitutional democracy and that should remain sacrosanct.
Aryal said the court should quash the House dissolution order and warn the PM and the president against wrongly invoking the constitutional provisions to dissolve the House.
He said the government’s decision to dissolve the House was an attack on the constitutional structure, a conspiracy against the constitution, a crime punishable under Article 5 of the constitution, and amounted to sedition under the new penal code. He added that the government’s unconstitutional act of dissolving the HoR could become the ground for removing the PM from his post.
A version of this article appears in print on January 22, 2021 of The Himalayan Times.