HOUSE DISSOLUTION CASE
KATHMANDU, FEBRUARY 3
Senior Advocate Sushil Panta and Deputy Attorney General Padam Prasad Pandey defended the government's move dissolving the House of Representatives.
Panta argued before the constitutional bench of the Supreme Court that Article 74 stipulated that Nepal's political system would be parliamentary form of government and hence the PM had the prerogative to dissolve the HoR.
He said Article 85 which contained the phrase 'unless dissolved earlier' confirmed the PM's prerogative to dissolve the HoR and Prime Minister KP Sharma Oli had invoked Article 76 (7) only to mention that he would hold mid-term polls in the next six months, as the article stipulated that mid-term elections should be held within six months after dissolution of the HoR.
When Panta made this argument, Justice Anil Kumar Sinha asked, "If you think that Article 74 gave the PM the power to dissolve the HoR, then why didn't the PM invoke that article in the House dissolution decision? Justice Sinha also asked: If Article 74 gave the prerogative to the PM to dissolve the HoR, then why did the Constituent Assembly take so long to write the new constitution, and what changes did it make in comparison to the 1990 constitution? Justice Tej Bahadur KC also asked Panta to clarify why the phrase Parliamentary form of government which was mentioned in the Preamble of the 1990 constitution was removed from the Preamble of the current constitution.
Panta then argued that the phrase that was in the Preamble of the 1990 constitution was in the operating clause of the current constitution.
Panta said the PM who commanded majority in the HoR was not required to seek vote of confidence in the House.
One of the Justices also asked if anyone elected Parliamentary Party Leader could remain Parliamentary Party Leader for full five-year term.
Deputy Attorney General Padam Prasad Pandey said that there were varying methods for dissolution of HoR, including by votes of two-thirds majority in the HoR, but the current constitution emulated the Indian model which gave the PM the prerogative to dissolve the HoR. He said the current constitution gave the PM the same prerogative that the constitution of 1990 had given. The constitution does not contain the same phrase, but the PM enjoys the same prerogative to dissolve the HoR, he argued.
A version of this article appears in the print on February 4, 2021, of The Himalayan Times.
