• DISSOLUTION OF LOWER HOUSE
KATHMANDU, FEBRUARY 1
Attorney General Agni Prasad Kharel defended Prime Minister KP Sharma Oli's move dissolving the House of Representatives.
Pleading before the constitutional bench of the Supreme Court, Kharel said that apart from Article 76 (7), the phrase 'dissolution of the HoR' had been mentioned in other independent clauses including articles 85, 111 (10), and 273 (8) that meant that the PM had the power to dissolve the HoR.
Kharel said Article 76 (7) had the word 'or' which meant that the sitting PM could dissolve the HoR if there was no possibility of forming an alternative government. He said the sitting PM was not obliged to seek a confidence vote.
Kharel argued that PM Oli had won the confidence of the House when he formed the government and the HoR never lost confidence in him. Besides, none of his party leaders ever challenged his Parliamentary Party leader status. Kharel said the PM had the support of 64 per cent lawmakers and there was no possibility for forming an alternative government. Kharel said opposition within a party did not matter until a party leader's position was officially challenged.
Kharel said articles of the constitution mentioned Nepal's political system as parliamentary system and none of the constitutional articles prohibited the PM from dissolving the HoR. The PM dissolved the HoR because obstacles were created in the HoR against the government by blocking some important bills.
Countering the arguments of petitioners' lawyers that the constitution had introduced a reformed parliamentary system stripping the PM of power to dissolve the Parliament, Kharel said: "There is no article in the constitution that says Nepal's political system is a reformed parliamentary system. On the contrary, Article 74 and other articles say that the country will have a parliamentary form of government.
Article 100 prohibited lawmakers from moving a no-trust motion against the PM for the first two years of his/her tenure, but similar restrictions were not imposed on the PM in any article of the constitution.
Kharel said the PM chose to dissolve the HoR but not to compromise on democratic values and as the PM sought the sovereign people's mandate, he was justified in dissolving the HoR. Kharel said a parallel could not be drawn between the Nepal's current case of HoR dissolution and the Sri Lankan case of HoR dissolution in 2018. He said the Sri Lankan constitution clearly prohibited the president from dissolving the HoR before four-and-a-half years of the House tenure, but the framers of the Constitution of Nepal, which was promulgated in September 2015, did not incorporate such restrictive clause in the constitution.
The SC's ruling that invalidated late prime minister Manmohan Adhikari's decision to dissolve the HoR had led to political instability in the country.
When Kharel argued that there were multiple articles in the constitution that provisioned HoR dissolution, Justice Sapana Pradhan Malla asked him to explain whether dissolution of the HoR and the consequence of the HoR dissolution was the same thing. She also asked Kharel to explain if the words ' Prime Minister cannot be appointed' as stipulated in Article 76 (7) and the PM's argument that obstacles were created against the government were the same issues.
Justice Bishwombhar Shrestha asked Kharel to explain how 76 (7) could be invoked when it said the HoR could be dissolved when there was no possibility of appointing the PM. Justice Sapana Pradhan Malla has asked Attorney General Agni Kharel where the government derived the rights to dissolve the House of Representatives from. Justice Malla asked the question when Kharel was explaining Article 76 to answer the question of Justice Anil Sinha about whether the government was a majority government.
A version of this article appears in the print on February 2, 2021, of The Himalayan Times.
