KATHMANDU, JANUARY 29
Senior advocates Raman Kumar Shrestha and Ram Narayan Bidari pleaded before the constitutional bench that Prime Minister KP Sharma Oli acted beyond the scope of the constitution to dissolve the House of Representatives.
Arguing on behalf of the petitioners who have challenged the PM's move to dissolve the House, Shrestha said the PM had failed to clearly invoke the Articles of the constitution to dissolve the HoR.
He said Article 76 (7) gave the PM the power to dissolve the House when the new government could not be formed but in this case the power was exercised by the PM and hence the dissolution of the HoR was unconstitutional.
Shrestha said the press release issued by the President's Office stated that the HoR was dissolved pursuant to Article 76 (1), 76 (7) and Article 85 of the constitution but the same Articles were not mentioned in the Cabinet decisions.
"When the first process to dissolve the HoR was illegal, all the subsequent processes that were applied to dissolve the House were also illegal.
Doctrine of poisonous tree says that when the first act is illegal, other acts based on the first acts are also illegal," he added.
Stating that HoR dissolution is sometimes called civil death of Parliament, Shrestha said any death was punishment and the punishment awarding authority must have clear power to announce civil death. He said the PM did not have such a power.
Shrestha said the government authorities printed the HoR dissolution notification in Nepal Gazette only when the issue was raised in the court and thus backdated notification was not valid.
He said the PM's move was against the principle of natural justice. The PM also said that the SC should also take into account the aspiration of the people who voted the NCP to power thinking that the party would work to ensure political stability and to achieve the goals of prosperity but the PM acted against these goals.
Bidari said that Articles 76 and 100 were incorporated with the main aim of maintaining checks and balance between the legislature and the executive and the PM's move to dissolve the HoR had rendered these articles inactive. If the SC validates the PM's move these two Articles of the constitution will be rendered defunct and the current constitution would be crippled.
These checks and balance that were introduced in these two articles to ensure that the PM doesn't have the power to dissolve the House and the House also does not have power to unnecessarily torment the PM.
Article 100 governs the process relating to vote of confidence and notrust motion. This Article also says that a no-trust motion cannot be moved against the PM in the first two years of his/her tenure and there should be one year gap between the two no-trust motions. Bidari also argued that Article 76 (7) could be invoked only after the election when the House fails to give a new government.
