KATHMANDU, FEBRUARY 11
Lawyers representing Speaker Agni Prasad Sapkota in the House of Representatives dissolution case have started pleading on his behalf before the constitutional bench of the Supreme Court.
Advocate Shree Krishna Subedi said the president who had stalled some political appointments in the past swiftly endorsed the HoR dissolution and hence she was also a participant in the unconstitutional act of House dissolution. He also said the court could treat Constituent Assembly Chairperson Subas Chandra Nembang's remarks as an admissible evidence. Nembang, who is a close confidant of Prime Minister KP Sharma Oli, had said at a public forum a year ago that the present constitution did not give the prime minister the prerogative to dissolve the HoR.
This is the first time that people's representatives have framed the country's constitution. "The current constitution has owned up the peace process. Since some work of the peace process is yet to be completed, it will fail if the constitution is not executed sincerely," he argued.
Justice Tej Bahadur KC asked Subedi to counter the arguments of the prime minister' lawyers who had said that in the first CA there was deadlock as to which form of government should be adopted, but in the second constituent Assembly, CA members accepted the PM's prerogative to dissolve the HoR if the parliamentary form of government was adopted. Subedi said the current constitution stipulated that the PM could dissolve the HoR only after meeting some preconditions.
He said the provisions of the 1990 constitution that gave the PM the prerogative to dissolve the HoR was removed from the current constitution with the objective of maintaining political stability.
He said Article 76 (7) provisioned for dissolution of the HoR only when a new government could not be formed. Stating that there was no example of the HoR being dissolved during recess, Subedi said the prime minister's move was unconstitutional as he had dissolved the HoR during parliamentary recess.
Senior Advocate Shyam Prasad Kharel said the PM had said that he dissolved the HoR on grounds of Nepal's own Parliament practices and practices of other countries with parliamentary form of government, adding, "But since Nepal had a written constitution, the power of the PM could not stretch beyond the written provisions of the constitution."
"Once a government is formed under Article 76 (7), the HoR cannot be dissolved," he argued.
Senior Advocate Lav Kumar Mainali argued that the constitution did not give the PM the prerogative to dissolve the HoR. "In a country like ours, which is governed by a written constitution, the prime minister cannot claim powers that are not conferred on him by the constitution," he said. Mainali also said the PM's move dissolving the HoR was a mala fide act as he cited intra-party fighting as a cause for dissolution of the HoR. "There is no example around the world where the PM has dissolved the HoR due to intra-party fighting," he argued.
He urged the court to reinstate the HoR and also fix its first meeting after reinstatement.
Earlier, the prime minister's attorneys had pleaded before the bench citing that the PM had the residuary power to dissolve the HoR.
Advocate Baburam Dahal said the PM dissolved the HoR as his own party had created obstacles against the government. He said the PM was free to run the government, and he was not obliged to abide by the party's dictates as happens in China.
A version of this article appears in the print on February 12, 2021, of The Himalayan Times.
