KATHMANDU, FEBRUARY 17
Senior Advocate Satish Krishna Kharel, who pleaded before the constitutional bench as an amicus curiae, argued that the constitution did not give any prerogative to the prime minister to dissolve the House of Representatives.
He said the constitution of 1990 had given the PM the prerogative to dissolve the HoR, but this power was excluded from the current constitution.
"What is not included is excluded. Had the constitution conferred power on the PM to dissolve the HoR, government attorneys would not invoke parliamentary norms and values to justify the PM's move dissolving the HoR", he argued. He said Article 85, which stipulated that unless dissolved earlier, the term of the HoR shall be five years was not a right conferring Article.
Unlike the United Kingdom where there is parliamentary supremacy, we have constitutional supremacy and there are no universal practices, norms and values regarding dissolution of the Parliament, he said.
Twenty-seven countries have imposed restrictions or limitation on the executive as far as the HoR dissolution is concerned and therefore, there is no universal principle regarding HoR dissolution.
In the United Kingdom, prior to the enactment of Fixed-term Parliament Act, 2011, House of Representatives was always dissolved by the prime minister before expiry of the five-year term, he argued.
Only KP Sharma Oli and Baburam Bhattarai gave people optimism regarding the country achieving the goals of development. No other leader - Sher Bahadur Deuba, Ramchandra Paudel, Pushpa Kamal Dahal or Madhav Kumar Nepal and their contemporaries - who could become prime minister, could bring the positive results as Oli did, but the question is, if the PM is allowed to violate the constitution then what will be the relevance of the rule of law? he wondered.
"If this bench thinks that this system and the constitution will work, and it should be saved, then the HoR dissolution must be invalidated," Kharel argued.
Another amicus curiae Senior Advocate Bijaya Katna Mainali said there were instances where the prime minister had dissolved the HoR due to intra and inter-party wrangling. Prime Minister KP Sharma Oli said that he dissolved the HoR as his own party leaders created obstacles against the government.
Mainali will continue his pleading tomorrow. Other amicus curiae Senior Advocate Purna Man Shakya and Gita Pathak Sangroula are yet to present their arguments.
A version of this article appears in the print on February 18, 2021, of The Himalayan Times.