HOUSE DISSOLUTION CASE
KATHMANDU, FEBRUARY 15
Lawyers representing petitioners, who have challenged the dissolution of the House of Representatives, rebutted the defendants' arguments saying that in a democratic country such as Nepal which was governed by a written constitution, no authority, not even the prime minister, could claim inherent or implied power to dissolve the Lower House of the Parliament.
Senior Advocate Shambhu Thapa argued before the constitutional bench that the Cabinet, while deciding to dissolve the HoR, did not mention the Articles of the constitution and only the President mentioned the Articles of the constitution to justify dissolution of the HoR, hence, there were procedural mistakes.
He said the current constitution did not give the prime minister the power that the kings and the Rana prime ministers enjoyed in the past.
He said the PM's statement that if the Supreme Court reinstated the HoR, then political instability would set in was an indirect admission of his guilt. Justice Anil Kumar Sinha then asked him not to refer to political statements expressed outside the court.
Thapa said the framers of the constitution almost made Nepal's HoR a fixed-term House.
Senior Advocate Raman Kumar Shrestha countered the PM's argument that said the PM dissolved the HoR using residuary powers conferred on him by Article 58 of the constitution.
Shrestha said Article 58 had given residuary power to the federal government and not the prime minister. He added that the dissolution order was not valid as it was not published immediately in the Nepal gazette.
Advocate Tika Ram Bhattarai countered the defendants' argument that Article 74 of the constitution which mentioned Nepal's political system as parliamentary form of government gave the PM inherent right to dissolve the HoR. He said the same Article stated that the form of government of Nepal would be multi-party, competitive, federal, democratic, republican, and parliamentary based on pluralism, but the PM had weakened multi-party system by unfairly arguing that nobody-else could form the government.
In response to defendants' argument that ruling party lawmakers had no right to move a no-trust motion against the PM, Bhattarai said Article 100 (2) envisaged that the prime minister's party could suffer split and thus ruling party lawmakers had the right to move no-trust motion against the PM and render him in minority in the parliamentary party.
He said the PM's claim that the HoR had created obstacles in passing the citizenship bill was wrong because the PM had prorogued the Parliament on 2 July 2020 when the HoR was scheduled to pass the bill.
"The prime minister is scoring goals from outside the soccer field. This court needs to force the PM to confine himself to the soccer game field," Bhattarai argued.
He said the court needed to reinstate the HoR to prevent the death of the constitution and to save the country from devastating effects.
Advocate Govinda Bandi said written constitutions did not confer inherent powers on any government authority. The PM is a duty bearer, and it is a globally accepted principle that duty bearers do not enjoy any inherent or implied power. He said the concept of inherent power came from the crown's legacy, which the current constitution had fully abolished.
Senior Advocate Krishna Prasad Bhandari said: What crime did the House of Representatives commit that it was dissolved by the government? Amici curiae will start their pleadings from tomorrow.
A version of this article appears in the print on February 16, 2021, of The Himalayan Times.
