Kathmandu, February 16
Senior Advocate Badri Bahadur Karki, who appeared before the constitutional bench as an amicus curiae in the House of Representatives dissolution case today, told the bench that the constitution had granted implied power to the prime minister to dissolve the HoR, but in this case PM KP Sharma Oli dissolved the House with mala fide intention.
He said the PM's intention was bad since he dissolved the Lower House of the Parliament due to intra-party wrangling.
The current constitution did not contain the phrases used in Article 53 of the 1990 constitution that gave the PM the power to dissolve the HoR, but the spirit of articles 74 and 85 of the current constitution was the same, he argued.
Article 74 of the constitution states that Nepal will have multi-party, competitive, federal, democratic, republican, and parliamentary form of government based on pluralism.
Article 85 (1) stipulates that unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.
Karki argued that the House could be dissolved only when it failed to form a government.
However, the case for forming another government had not arisen because the Nepal Communist Party (NCP) had not changed its parliamentary party leader.
The prime minister's lawyers have argued that the phrase 'Parliamentary form of government' used in Article 74 and the phrase 'unless dissolved earlier ' used in Article 85 (1) gave the prime minister inherent power to dissolve the HoR.
Justice Sapana Pradhan Malla asked Karki what the court should look into - explicit provisions or implied provisions -- while dealing with the question of the PM's power to dissolve the HoR.
Karki responded by saying that the PM had inherent power to dissolve the HoR, but that was not explicitly stated in the constitution.
Karki said that the constitution gave the prime minister the power to dissolve the House to ensure checks and balances between the legislature and the executive.
Justice Anil Kumar Sinha also asked Karki how it was morally right for the PM, whose party won an overwhelming majority in the name of political stability, to dissolve the HoR in three years.
Four other amici curiae will present their arguments before the five-member constitutional bench headed by Chief Justice Cholendra Shumsher JB Rana.
A version of this article appears in the print on February 17, 2021, of The Himalayan Times.