Lawyers spell out flaws in PM’s move


Lawyers representing the petitioners who have challenged the dissolution of the House of Representatives said Prime Minister KP Sharma Oli could only exercise powers given by the constitution and the current constitution did not give him the power to dissolve the HoR.

Advocate Raju Prasad Chapagain pleaded before the constitutional bench that the constitutional provisions sought to maintain stability of both the executive and the legislature by allowing the PM to run the government without worrying about a no-trust motion for at least the first two years and by stripping the PM of any power to dissolve the HoR.

Chapagain said constitutionally the House could only be dissolved when no party had a majority and there was no possibility of formation of a coalition government.

The PM enjoyed the benefit of the executive’s stability clause, but when time came to be responsible and accountable towards the Parliament, he maliciously dissolved the HoR, he added.

He said the PM had no power to invoke ‘abstract’ parliamentary traditions to argue in favour of his decision to dissolve the HoR.

“There are no uniform rules in parliamentary democracies.

We have made our own rules and the PM, who is a public post holder, can exercise only the powers granted by the constitution,”

Chapagain said. He said the bench should not ask whether or not an alternative government could be formed. It is the Parliament’s duty to form a new government, he added.

“ The PM said that he dissolved the House due to disputes within his own party. If that is the case, the PM can seek a confidence vote in the House or lawmakers can move a no-trust vote against him. If the PM wins, he will continue to run the government.

Otherwise, a new PM should be appointed to run the government. If there is no possibility of forming a new government, only then the incumbent government can recommend the dissolution of the HoR,” argued Chapagain.

Senior Advocate Shailendra Kumar Dahal said the press release issued by the President’s Office could not be deemed valid, as it wrongly stated ‘as per the Cabinet’s decision and the PM’s recommendation’.

“As per article 66 (2), the recommendation for the dissolution of the HoR should have been made by the Cabinet and it should have been presented by the PM to the president, but the president’s office said the decision to dissolve the HoR was taken by the Cabinet and the recommendation was made by the PM,” he argued.

Dahal said that the PM had claimed in his written reply that his government was formed under Article 76 (1) but in the eyes of the law, his government was formed under Article 76 (2) because after the merger of the former CPN-UML and CPN- MC, neither the Election Commission nor the President’s Office maintained that record and sent the updated details for printing in the gazette.

He also said that the provisions relating to the formation of government and dissolution of the HoR in case when new government cannot be formed was unique and the PM should not argue abstract provision of PM’s prerogative to dissolve the HoR.