• Tells Prez Office to appoint Deuba the PM by this evening • Fixes July 18 deadline for convening the House session
KATHMANDU, JULY 12
The Supreme Court today invalidated the government's May 22 decision to dissolve the House of Representatives and reinstated the Lower House.
Releasing the full text of HoR dissolution case verdict, the five-member constitutional bench led by Chief Justice Cholendra Shumsher JB Rana ordered the government to call the HoR session within a week (before 5:00pm, July 18). The court also ordered the President's Office to appoint Nepali Congress President Sher Bahadur Deuba the next Prime Minister under Article 76 (5) within two days (before 5:00pm, Tuesday).
Observing that any member of the HoR who had supported Deuba's bid for prime ministership cannot be punished under anti-defection laws, the apex court ordered the defendants not to take action against any lawmaker under anti-defection laws.
President Bidhya Devi Bhandari had dissolved the HoR for the second time on the recommendation of the Council of Ministers against which 146 members of the dissolved HoR, including Nepali Congress President Sher Bahadur Deuba, who had staked claim to form the new government under Article 76 (5) of the constitution had filed a petition at the Supreme Court.
In the 167-page ruling, the SC observed that political parties had no power to issue whips to lawmakers when they supported the government formed under Article 76 (5).
The court observed that if provisions of the constitution were not interpreted in a simple manner and if loopholes were exploited to run the government, then that could undermine the principle of constitutionalism and could give rise to arbitrary behaviour. The court observed that it could review the HoR dissolution case and also the president's decision as no one was above the law.
In response to Prime Minister KP Sharma Oli's argument that the dissolution of the HoR was necessary for maintaining political stability, the court said there were few examples of HoR dissolution in other countries and not dissolving the HoR gave the message of political stability.
The court observed that the constitution provisioned for the dissolution of the HoR only when a new prime minister could not be appointed or the newly appointed PM could not obtain the vote of confidence.
Since easy use of power to dissolve the House can lead to abuse of authority, unnecessary expenditure, political instability, and political inactivity, the Constituent Assembly has limited the scope for HoR dissolution, the court said. It added that since the HoR dissolution case was not merely a political issue, but also a constitutional one, judicial review was necessary.
The court said the constitution did not give discretionary power to the PM to dissolve the HoR on the basis of his objective analysis of whether a particular consequence would emerge.
"The constitution does not give the PM the power to dissolve the HoR abruptly in the name of political stability and fresh mandate. Intra-party fight cannot be the ground for HoR dissolution," the SC observed.
The bench ruled that a candidate staking claim to form a new government under Article 76 (5) needed the support of majority members of the HoR, not the support of political parties. "If there was any doubt about the claim made by the claimants, the president should have tried to verify it, but since the president did not do that she was confident that 149 members of the HoR - the majority members - had supported Deuba's bid for prime ministership."
The court said the HoR was the only authentic body to check whether or not a lawmaker who had staked claim to form a new government would obtain the vote of confidence. "The president rejected Deuba's claim on the ground that the lawmakers who had supported him could be punished under the anti-defection law. However, none of the supporting lawmakers had faced any punitive action and as long as they remained lawmakers, they were free to play their roles." The court observed that conditions of Article 76 (5) must be fulfilled before the PM invokes Article 76 (7) to recommend House dissolution.
"Since Deuba has the support of 149 members, a majority at the time of dissolution, it is a credible ground that he can win the vote of confidence."
The court observed, "The HoR was dissolved without completing the process of appointing a new PM under Article 76 (5), without fulfilling the conditions laid down by Article 76 (5), and without letting the situation of vote of confidence arise." It said the PM's statement that he was not in a position to obtain the vote of confidence was tantamount to surrender and his statement that he was paving the way for the formation of an alternative government meant a new government. "For these reasons he had no right to stake claim for prime ministership under Article 76 (5) of the constitution."
The court said a PM appointed under Article 76 (3) could not stake claim to form the government under Article 76 (5) without obtaining the vote of confidence.
It is illogical for a prime minister, whose alternative has been sought, to stake a claim to form a new government, the court observed.
"A total of 146 members of the dissolved HoR have filed this petition.
This also is a credible ground that Deuba will obtain the vote of confidence."
The court observed that unlike in other sub-clauses of Article 76, where the words 'Parliamentary Party Leader' and 'with the support of two or more parties' were mentioned in connection with the appointment of a new PM, Article 76 (5) did not mention these words. "There won't be any meaningful difference between Article 76 (2) and 76 (5) if political parties' support was deemed necessary under both these articles. Article 76 (5) is a kind of special provision that is aimed at preventing political instability and whips cannot be issued to lawmakers who exercise their power under this article," the court observed.
The SC ruled that allowing lawmakers' independent role in certain circumstances did not mean allowing politics of party-less democracy as practised in Panchayat system. "This provision allows lawmakers who are people's representatives to use their wisdom. Lawmakers cross the floor in the UK and the USA also," the court observed.
The court added that presidential jurisdiction was exceeded when the president rejected Deuba's claim on the grounds that lawmakers from parties other than the Nepali Congress who had supported Deuba's bid for prime ministership could face action under anti-defection laws and consequently lose their HoR seats. "President has no dis cretionary power to reject a candidate's claim for prime ministership," the court observed.
"The president's institutional decisions can always be reviewed.
If her decisions cannot be reviewed, then that can give rise to arbitrary and autocratic behaviour," it said.
A version of this article appears in the print on July 13 2021, of The Himalayan Times.