The Constitution shall reign supreme


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Following the abrupt parliament dissolution on December 20, 2020, many constitutional experts and advocates decried the step, claiming it to be blatantly unconstitutional. A number of writ petitions were filed with more than 300 lawyers names enlisted for litigating the case. The hearing of the case began on December 25, 2020 after which the Supreme Court shifted the case before the constitutional bench. Further, there were deliberations as to whether a full bench can adjudicate upon the particular matter or whether it is only the prerogative of a constitutional bench. The advocates stated that the Constitution of Nepal, 2015 has clearly laid down that the matters concerning the constitution should only be heard before a constitutional bench.

Initially the bench comprised of Chief Justice Cholendra SJB Rana and Justices Anil Kumar Sinha, Tej Bahadur KC, Bishowamber Shrestha and Hari Krishna Karki. A controversy loomed with respect to appointment of Justice Hari Krishna Karki as one of the judges, since he had served as Attorney General during the tenure of PM KP Sharma Oli. The bench inclusive of Justice Karki would amount to conflict of interest. Therefore, Justice Karki recused himself and Justice Sapana Pradhan Malla was appointed in his place. Similarly, Senior advocate Geeta Pathak Sangruala, Purna Man Shakya, Satish Krishna Kharel, Bijay Kant Mainali and ­Badri Bahadur Karki ­­were appointed as amicus curiae (experts who are unbiased towards either party and help the Court with required information and advice to furnish a judgement).

Issue of the Case

The case essentially deliberated upon the constitutionality of the parliament dissolution, wherein Article 76 (1), (7) and Article 85 of the Constitution were invoked. As per Article 85, the tenure of the parliament is of five years ‘unless dissolved earlier pursuant to this Constitution.’[1] Article 76 stipulates the conditions under which the house can be dissolved. Dissolution of the house is only delved into clause 7 of Article 76 which states that “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 Representative and appoint a date of election so that the election to another House of Representative is completed within six months.”[2]

Moreover, the house cannot be dissolved without the president having used up all avenues to form a government. These avenues are forming government by: leader of single largest party,[3]  or any member who could command a majority,[4] or a leader of Majority party[5] or largest coalition party.[6] On simply reading Article 76, it is understood that the purpose of this Article is to form the government and in case of failure thereof even after various endeavours; house dissolution can take place to carry out new elections. The dissolution cannot happen in any other circumstances.

The legislative intent behind the limited conditions under the particular Article is to circumvent the frequency of house dissolution to maintain political stability. The Constitution of 1990 had expressly bestowed the power to dissolve the house to the executive head under Article 53.[7] This power led to political instability with multiple instances of parliament dissolution. Therefore, rectifying the blunder, such provisions were intentionally excluded from the new constitution to avoid such a situation.

Reasoning of the Government

Subsequent to the petitioner’s pleading, the presentation of defendant’s argument began on February 1. Attorney General Agni Kharel representing the government as chief counsel along with a team of advocates who presented the arguments on behalf of the government. The counsel mostly reiterated PM Oli’s reason for dismantling the house citing Article 76 and 85. He stated that the Prime Minister exercised ‘inherent powers’ while recommending house dissolution. Nevertheless, there was no material constitutional ground to support his claim. The lead counsel on the defendant side struggling to present concrete arguments speaks volumes in itself. He further stated that the dissolution of parliament was a political move and does not require judicial review. Upon being cross questioned, Kharel was unable to provide a concrete justification and just gave feeble answers which further weakened the case for defendants.

Further, senior advocate Dr Surendra Bhandari presented 7 points before the court justifying that the Prime Minister was well within his rights to dissolve the parliament. These 7 points are as follows:

  1. He argues, Article 76 (1) has not restricted the executive head to dissolve parliament, Article 66 (1) read with Article 76 (7) allows the Prime Minister to dissolve parliament.
  2. As per Article 76, there are three ways in which the Prime Minister can be appointed, out of which the Prime Minister Oli is appointed under clause 1.
  3. There is no limitation in Executive right under Article 75. All the powers except administrative and judicial rights are vested with the Prime Minister.
  4. He cited Article 2, 56, 57, 66, 74, 75, 76, 81, 82, and 100 as the basis to dissolve the house.
  5. The constitution has conferred residuary powers to the executive head and the right to dissolve the parliament falls within the scope of residuary power. 
  6. He cited precedents wherein prime minister with majority had dissolved the parliament. The precedents showed that only the president with no majority could not dissolve the parliament.
  7. The Prime Minister appointed under 76 (1) does not require vote of confidence.

Regarding the judicial review of political matters, the precedents suggest that the Court has the jurisdiction to intervene where the political move is infringes the constitution, regardless of whether it clashes with politics. Moreover, the argument of inherent powers presented by the defendants does not stand where the written constitution prevails. The powers bestowed upon the prime minister needs to be univocally mentioned in the constitution.

Supreme Court’s Verdict

The Court after hearing the arguments of both sides asked the amicus curie to provide their insight vis-à-vis the case. The members of amicus curiae presented conflicting arguments. The court taking into account the arguments of both side as well as the amicus curie delivered a historical judgment of reinstating the parliament on February 23.  

The Court got a perfect opportunity to interpret the constitutional provisions and clear out ambiguities in the constitution surrounding Article 76. However, the Court applying textualist approach (statutory interpretation of plain text to determine meaning of the legislation) interpreted the constitution narrowly. The judgment delivered was very fact specific and it did not comprehend potential/probable situation wherein the house dissolution could take place. It simply stated that the for house dissolution to be constitutional it has to fulfil all the pre-requisites under Article 76.

Nevertheless, the Supreme Court’s decision to overturn parliament dissolution is ground-breaking. The Court’s decision has not only upheld the supremacy of the constitution and rule of law but also restored the faith of people in the judiciary to a certain extent. The Court’s resistance towards the populist leader in delivering an unbiased judgement honouring the values and spirit of the Constitution is laudable. This judgment has reaffirmed the separation of powers and fortified democratic norms.

[1] Article 85, the Constitution of Nepal, 2015.

[2] Article 76 (7), the Constitution of Nepal, 2015.

[3] Article 76 (3), the Constitution of Nepal, 2015.

[4]Article 76 (5), the Constitution of Nepal, 2015.

[5] Article 76 (1), the Constitution of Nepal, 2015.

[6] Article 76 (2), the Constitution of Nepal, 2015.

[7] Article 53, the Constitution of Nepal, 2015.

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