KATHMANDU, FEBRUARY 18
Senior Advocate Purna Man Shakya, who pleaded before the constitutional bench as amicus curiae today, said the prime minister did not have an inherent, implied or residuary power to dissolve the House of Representatives and the PM could invoke Article 76 (7) only when he could fulfil the preconditions stated in the article.
Shakya said the precondition stated in Article 76 (7) regarding dissolution of the HoR could be fulfilled in two situations: The prime minister appointed under Article 76 (5) fails to obtain the vote of confidence or a situation exists where the prime minister cannot be appointed.
Shakya said Prime Minister KP Sharma Oli, who became the PM under Article 76 (1) must resign to pave the way for formation of another government. Shakya said the PM had obstructed formation of a new government and dissolved the HoR and that was why his move was unconstitutional.
Shakya, however, said the PM's move was not mala fide as he clearly stated that he was dissolving the HoR due to obstruction by his own party leaders against the government.
He said the PM's move was extraneous because there were precedents that barred prime ministers from dissolving the Parliament due to intra-party wrangling. The PM should have opted to resolve the intra-party dispute on the basis of the party's statute or parliamentary party statute.
Shakya said former British PM John Major, who was challenged by his own party rivals, resigned from the post of Parliamentary Party Leader and challenged his rival in the party to replace him.
He defeated his rival in the election held to choose another parliamentary party leader but PM Oli did not do that when he was challenged by his own party rivals.
He said former PM Manmohan Adhikari, who had become PM on the basis of being the parliamentary party leader of the largest party, dissolved the HoR arguing there was no possibility of forming another government, but the Supreme Court ruled that the possibility of forming alternative government should not be obstructed.
He said former PM Sher Bahadur Deuba had also dissolved the HoR making almost similar arguments.
Shakya said Article 85 was not an article that could create substantial right for the PM and the phrase 'pursuant to this constitution,' only indicated pursuant to Article 76 (7) as there was no other provision in the charter that dealt with HoR dissolution.
Interpreting the phrase 'unless dissolved earlier' as giving the PM power to dissolve the HoR will be wrong, because there are 74 places in the constitution where the phrase 'pursuant to this constitution' has been mentioned,' Shakya argued.
The prime minister's lawyers had argued that the phrase used in Article 85 (1) 'Unless dissolved earlier, the term of the HoR will be five years,' gave the PM the inherent power to dissolve the HoR.
"A written constitution does not give unlimited power to any government authority. There is no scope for inherent power. We were tormented by the king's inherent power and that's why we abolished this power in the new constitution," he argued.
He also argued that residuary powers did not apply to the core issues of the constitution such as dissolution of the HoR.
Another amicus curiae Senior Advocate Bijaya Kanta Mainali argued that Article 85 (1) gave the PM the power to dissolve the HoR. He said the PM dissolved the HoR as there was no possibility of forming an alternative government.
A version of this article appears in the print on February 19, 2021, of The Himalayan Times.