HOUSE DISSOLUTION CASE
KATHMANDU, FEBRUARY 14
Lawyers representing petitioners who have challenged the House of Representatives dissolution in the Supreme Court rebutted the defendants' argument saying the prime minister did not have prerogative to dissolve the House.
Advocate Dinmani Pokharel argued before the constitutional bench that the present constitution envisaged dissolution of the House only if a new government could not be formed. He said Nepal's parliamentary democracy was a mixed model, hence the Westminster model would not apply in the country. He said a PM appointed under Article 76 (1) did not have power to dissolve the HoR and if the prime minister wanted that power, then he should duly seek to amend the constitution.
Chief Justice Cholendra Shumsher JB Rana asked: How cans the option of 76 (2), 76 (3) and 76 (5) apply when the PM was appointed under Article 76 (1) and he commanded majority in the House? Pokharel responded to CJ Rana's question saying that the court should not imagine what would happen. "The process of an alternative government must be explored. If the PM does not want to run the government, he should resign and let the party explore other options. CJ Rana also asked whether or not the Oli-led government was the NCP government. To this question Pokharel replied in the affirmative.
Advocate Kanchan Krishna Neupane said the defendants' lawyers had stated that the PM had the power exercised by the king and the Rana prime ministers in the past, but no Article of the constitution stipulated this. He said the constitution gave the PM limited power and not unlimited or inherent power.
Senior Advocate Dinesh Tripathi said the PM did not have power to dissolve the HoR just because his own party created obstacles against the government. He said the PM's move dissolving the HoR was not only unconstitutional but also irrational as his move could increase economic burden on the country, which was already experiencing the devastating impacts of the COVID-19 pandemic. He said mere mention of parliamentary form of government in the constitution's Article did not ipso facto give the PM the prerogative to dissolve the HoR.
Advocate Megha Raj Pokharel said the PM could not seek inherent right as the constitution had expressly provisioned the PM's powers.
He said the Westminster model of government gave the PM power to dissolve the HoR, but in the UK too, Fixed- term Parliaments Act was enacted to deny the PM the power to dissolve the House. He said the Westminster model did not exactly apply in countries other than the UK and Australia and hence the defendants' arguments of the PM having inherent power to dissolve the HoR were flawed.
Pokharel said the general rule of statutory interpretation would apply in this case as constitutional provisions clearly denied power to the PM to dissolve the HoR.
Advocate Om Prakash Aryal argued that the mere use of the phrase parliamentary form of government in Article 74 could not grant the PM the power to dissolve the HoR.
Advocate Bikas Bhattarai said inherent rights must be codified in the constitution or Act and since the PM's power to dissolve the HoR had not been mentioned in the current constitution, his move dissolving the HoR was unconstitutional.
A version of this article appears in the print on February 15, 2021, of The Himalayan Times.
