Orders government to call new session of Parliament within 13 days


The constitutional bench of the Supreme Court, in a landmark verdict today, reinstated the House of Representatives, invalidating the government's December 20 decision to dissolve the Lower House of Parliament. The SC ordered the government to call the new session of the Parliament within 13 days.

The apex court termed the Prime Minister KP Sharma Oli's decision to dissolve the HoR unconstitutional and invalidated all the decisions related to the dissolution of HoR from the beginning.

Observing that Nepal's parliamentary system was built on its own past experiences, the court said the constitution's provisions related to the HoR and National Assembly election, the number of Cabinet members, inclusion in the Cabinet, bar on moving no-trust motion in the first two years, and parliamentary hearing made Nepal's parliamentary system unique.

It said the phrase 'parliamentary form of government' mentioned in Article 74 should be seen in totality, not in isolation.

The government had argued that since Article 74 stipulated that Nepal had a parliamentary form of government, the PM had the prerogative to dissolve the HoR as was the tradition in other parliamentary democracies.

The petitioners had argued that Nepal's new constitution adopted a reformed parliamentary form of government that did not give the PM unfettered power to dissolve the HoR.

The apex court observed that all the characteristics of traditional parliamentary system had not been incorporated in the constitution. The court said the framers of the constitution kept in mind lessons learnt from the HoR dissolution under the 1990 constitution and did not give the PM unconditional power to dissolve the HoR.

The court said that at a time when there were other alternatives available, a decision taken on subjective grounds to dissolve the HoR in a manner that could put an additional economic burden on people could not be termed constitutional because that was not the spirit and objective of the constitution.

The party that won clear majority in the election has no other option but to form and run the government. Constitutional morality requires that the prime minister who becomes the parliamentary party leader should be accountable to the Parliament and run the government, the court observed.

It said that according to sub-articles of Article 76, the incumbent PM could recommend dissolution of the HoR as an obligation only when s/he failed to obtain a vote of confidence and another PM could not be appointed.

The court observed, "If the unification of two or more parties creates the largest party in the House as provisioned under Article 76 (1) and a new equation emerges where two or more parties will have to form the government under sub-articles of Articles 76, then such options must be explored within the HoR."

The prime minister's lawyers had argued before the bench that the PM who had the majority, but was hindered by his own party leaders, did not want to run the government and since there was no possibility of forming another government, the PM decided to dissolve the HoR to take a fresh mandate.

"People elect the Parliament and the Parliament gives the government. This is how the parliamentary form of government runs," the court observed.

It said framers of the constitution did not envisage that the PM, who is the parliamentary party leader, would have to invoke Article 76 (7) to dissolve the House.

The SC observed that the PM did not have implied power to dissolve the HoR as argued by the government.

As this constitution clearly mentions the conditions for the dissolution of the HoR, it cannot be imagined that the PM has the implied power to dissolve the HoR, the SC observed.

The phrase 'unless dissolved earlier' as stipulated in Article 85 (1) does not give the PM the right to dissolve the House.

"Constitutionalism envisages limitation in government's power, separation of powers, and accountable government," the SC observed in its verdict.

The main characteristics of a written constitution is to clearly stipulate the boundary of all state organs and to ensure checks and balances.

The court said the residuary powers given to the federal government by Article 58 referred to the powers of the three tiers of the government, not the power to dissolve the House.

The court said that since there was a constitutional provision whereby the gap between the two sessions of the Parliament shall not be more than six months, and since the time that elapsed due to the government's decision to dissolve the HoR should not be counted, the government must call the new session of the Parliament within 13 days. The government had dissolved the HoR 13 days before the new session was mandatority due.

The SC observed that the issues related to articles 85 and 76 (1) of the constitution were purely constitutional issues.

It ruled that unless the constitution stated that certain issues were not under the purview of judiciary, all issues related to the constitution were matters of judicial review. If the court declines to entertain those issues that question constitutional boundaries of an authority and if the defendants claim those issues as political issues, then the court will be deemed not to have fulfilled its responsibility, it added.

As many as 13 petitions were filed at the apex court against Oli government's move dissolving the House of Representatives.

Apart from Chief Justice Cholendra SJB Rana, justices Bishowambhar Shrestha, Anil Kumar Sinha, Sapana Pradhan Malla, and Tej Bahadur KC are members of the constitutional bench.

A version of this article appears in the print on February 24, 2021, of The Himalayan Times.