The verdict issued by the five-member Constitutional Bench has ‘rectified the unconstitutional moves made by the president and the prime minister’

--BY VISHWASH THAPA

Ending weeks of speculations, the Supreme Court on February 23 overturned the December 20 move of President Bidya Devi Bhandari to dissolve the House of Representatives on the recommendation of Prime Minister KP Sharma Oli.

The verdict was issued by five-member Constitutional Bench of the court led by Chief Justice Cholendra Shumsher Rana after two months of hearing.The mandamus order said there is no constitutional ground to dissolve the House of Representatives. The orderwas issued unanimously by the five-member bench which included justices Bishwombhar Prasad Shrestha, Anil Kumar Sinha, Sapana Pradhan Malla and Tej Bahadur KC along with Rana.

The Supreme Court said the House can only be dissolved as per Article 76 (7) of the Constitution when there is a hung parliament and there is no possibility of formation of a government. Oli had, however, recommended the dissolution when there was a possibility of formation of a government. Oli’s recommendation was later approved by the president. As many as 13 writs were filed arguing that Bhandari and Oli didn’t have the constitutional authority to make those moves.The hearing on the writs began on December 23, three days after the House dissolution.

Article 76 (7) of the Constitution has a clear provision on House dissolution. It states, “In cases where the Prime Minister 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 set a date for election so that the election to another House of Representatives is completed within six months.”

“The House of Representatives was dissolved when there were possibilities of formation of other governments,” says the verdict read by Rana. The verdict has also specifically said that the “meeting of the House of Representatives be arranged within 13 days”. This makes it mandatory for the House meeting to be called within March 8.  This implies the Oli government must resume the winter session of the Lower House by March 8.

The verdict issued by the five-member Constitutional Bench has “rectified the unconstitutional moves made by the president and the prime minister”, according to constitutional experts.

“The Supreme Court has rightly reinstated the parliament safeguarding the constitution,” said Raju Prasad Chapagain, a constitutional lawyer. “The unconstitutional move has now been corrected.”

Contrary to the claim of Oli that a prime minister in parliamentary democracy can dissolve the House of Representatives when he is not comfortable, the Supreme Court has said it was wrong of him to make that assertion, as the Constitution of Nepal doesn’t provide such authority to the executive head of the country.

The pressure on Oli to step down as the prime minister is now mounting, as the court has declared Oli’s move unconstitutional. Constitutional experts say he should resign on moral ground immediately and pave the way for the formation of the new government.

In case Oli denies to resign, he will have to face the no confidence vote, experts say. The Pushpa Kamal Dahal and Madhav Kumar Nepal faction of the Nepal Communist Party on December 20 registered a no confidence motion with the signature of 90 lawmakers. Experts say the same motion can be put into voting or Dahal-Nepal faction or any other party can lodge another motion.

The process of the no confidencevote will begin once the meeting of the Lower House begins. A meeting of the Oli faction on February 24 decided to call the meeting of the parliament as directed by the Supreme Court which means the House session will begin by March 8.

As the breakaway faction from his own party has registered the no confidence motion, Oli can seek support from the Nepali Congress to save his government. As 90 lawmakers from the Nepal Communist Party have stood with Dahal-Nepal faction and party’s vice-chairman Bamdev Gautam -- who was staying neutral during the fiasco in the party -- has demanded Oli’s resignation after the Supreme Court issued its verdict, Oli faction will have a maximum of 82 members with him.  Oli’s position will only remain strong if Nepali Congress with 63 lawmakers sides with him.

Oli will need the support of 138 lawmakers from the 275-member House of Representatives to remain in power. The Nepali Congress will be a kingmaker in the formation of the coalition government. In that case, the Nepali Congress might demand for the prime ministerial berth. The Dahal-Nepal faction has already offered the position to the party’s President, Sher Bahadur Deuba. The Nepali Congress is expected to make its stance clear once the Nepal Communist Party formally announcesthat it has split in two.

It is also possible that the Nepali Congress supported by Dahal-Nepal faction may rope in Janata Samajbadi Party to form the government. The Jananta Samajbadi Party could extend its support on the condition that the new government amends the Constitution.

The three-party coalition will have 185 lawmakers, which is around 67 percent of the total strength of the Lower House. The Dahal-Nepal faction has 90 lawmakers while Nepali Congress has 63. The Janata Samajbadi Party has 34 lawmakers but Resham Chaudhary and Hari Narayan Rauniyar are absent so 32 can participate in the voting.

But there are also chances of the Nepali Congress not participating in the government formation process, which means the country will have to face a hung parliament and the House of Representatives will have to be dissolved constitutionally. That will ultimately pave the way for the mid-term elections.