The current political turmoil in Nepal is the talk of the town everywhere.
The constitutional bench, while giving its verdict on the issue, should also provide the explanation of Article 93 in accordance with this case for future references. It should be clear whether two consecutive sessions refer to two consecutive sessions of a parliamentary term or any two consecutive sessions at any point of time
The focus point, however, is the ongoing high-profile debate in the constitutional bench of the Supreme Court. This is the first time that a five-member constitutional bench has been formed as per Article 137(1) of the Constitution of Nepal to resolve the dispute concerning the legality of the dissolution of the House of Representatives (HoR) by the Prime Minister on December 20, with mid-term elections announced for April 30 and May 10, 2021.
The high-profile advocates are putting forward their opinions for and against the move of the prime minister. The most frequently quoted articles in almost all the arguments are different sub-clauses of Article 76 on the Constitution of Council of Ministers and Article 85 elaborating on the term of the House of Representatives. More specifically, the argument in favour of the move is based on Article 85(1) which goes like: Unless dissolved earlier pursuant to this Constitution, the term of the House of Representatives shall be five years.
The core question is, does Article 85(1) really permit the prime minister to prematurely dissolve the parliament? The straight forward answer is, No. This Article does not shed light on the dissolution of the parliament instead emphasises that the term of the HoR will be five years.
There is only one provision by which the ongoing parliament could be dissolved and the mid-term elections announced. This is enlightened by Article 76(7): In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
After going through the daily updates of the arguments taking place in the constitutional bench, I feel that one very important Article does not seem to be referred to as much as it should have been in this issue - Article 93 on summoning and prorogation of the session. Article 93(1) clearly indicates that the sessions of the Federal Parliament will be summoned by the President. More importantly, the Article points out that there should not be a gap of more than six months between two consecutive sessions.
One has to note that there is no explanation as to whether 'two consecutive sessions' refer to two consecutive sessions within a particular parliamentary term or two consecutive sessions at any point of time. It is obvious that every single detail is not scribbled in the Constitution; hence, one has to go into the essence of Article 93. The Constitution has not imagined a period longer than six months without a session of the HoR. This implies that the new session of the HoR should be mandatorily summoned within the six months of the termination of the previous session, be it any session within a particular parliamentary term or the last session of the ongoing term and the first session of the succeeding term.
Coming back to recent developments, the ongoing session of the HoR was prorogated on July 2, 2020. According to Article 93(1) of the Constitution, the mandatory date for the summoning of the new session was due by latest January 1, 2021. However, the HoR was dissolved well before this date, on December 20.
The present debate going on in the constitutional bench is whether the dissolution of the HoR is in accordance with the constitutional norms or the move was against the spirit of the Constitution.
Based on the points raised above, the ambiguity as to whether the Prime Minister is allowed to recommend the dissolution of the parliament is only a secondary issue. The preliminary discussion should be whether the recommendation process of the Prime Minister was within the specified norms of the Constitution. The move of the Prime Minister would have been worthy for further discussion if the due session of the parliament were summoned even for just one day within the stipulated date of January 1. That would have fulfilled the gist of Article 93(1); the gap between two consecutive parliamentary sessions would not have been more than six months, provided the mid-term elections were held on April 30 and May 10. Not summoning the session of the HoR by January 1 has sullied Article 93(1), and hence the Constitution has already been violated from that point onwards.
The respected constitutional bench will definitely give its verdict on the issue based on the merit of the discussion of the who's who of Nepali legal practitioners.
However, the bench should also provide the explanation of Article 93 in accordance with this case for future references. It should be clear whether two consecutive sessions refer to two consecutive sessions of a parliamentary term or any two consecutive sessions at any point of time.
To conclude, the Constitution of every nation is used to describe special and very specific laws that form the basis for state action and regulate the establishment and exercise of political rule. The Preamble of the Constitution of Nepal instigates with: We, the Sovereign People of Nepal.
Hence, no one has the right to mingle with unconstitutional practices. If so, the sovereign people have every right to protest against the unconstitutional moves, as Abraham Lincoln once rightly said, we the people are the rightful masters of both the parliament and the courts, not to overthrow the Constitution but to overthrow the men who would pervert the Constitution.
Dr Joshi is a senior scientist and Assistant Professor of Neurobiology at Martin-Luther University Halle-Wittenberg, Germany