What we can expect from supreme court

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After President Bidhya Devi Bhandari’s step to dissolve House of Representative on the recommendation of Khadga Prasad Sharma Oli led government on last week, Everyone’s eye is toward Supreme Court. About two and half month ago, same Supreme Court reversed the decision of the government to dissolve the house of representative saying that it is unconstitutional. In the Judgment given by constitutional bench lead by Chief Justice Cholendra Rana, Supreme Court held that Government having majority in Parliament cannot dissolve Parliament under article 76(7) and 85. But the current scenario is totally different from previous ones. When President dissolve the house of Representative first time, KP Oli was the prime minister under article 76(1) but after the judgment of Supreme Court to break the ruling party Nepal Communist Party to CPN UML and CPN Maoist Centre, his Government was converted from 76(1) to 76(2) automatically. After that he loosed the vote of confidence under article 76(4). He again reappointed as PM under article 76(3) after opposition parties were unable to put together a coalition government by the 9 pm deadline. But he didn’t go through another floor test citing that he does not have adequate support in the Parliament. However dramatically both Mr. Oli and Mr. Deuba had claimed when the president had initiated the process of formation of government in accordance to article 76(5). But president declined both of the claim and dissolved the House of Parliament and announced mid term election on November 12 and 18.

 


On Monday 24th may 2021, 146 member of recently dissolved parliament had filed mandamus writ petition along with 28 other writ petition on Supreme Court. As most of us are well versed about the fact of the cases, in this article I will discuss about relevant provision Legal issue associated with the cases and different possible outcome with the help of judicial precedent.


 Provision:- 

 The main issue related with this case is Article 76(5) and Article 76(7) along with Article 85 of Constitution of Nepal 2015.

 Article 76(5) states that ” In cases where the Prime Minister appointed under clause (3) fails to obtain a vote of confidence under clause (4) and any member under clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.” 

And article 76(7) 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 Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.”

 Legal issues:-

 The couple of issue associated with this case are:- 

1. Whether a prime minister appointed under article 76(3) can dissolve the house of Representative or not?

 2. Whether president have power to decline the claim by the member of the house to appoint prime minister under article 76(5) or not?

 3. Article 76(4) is mandatory or not for the prime minister appointed under article 76(3)? 

4. Whether dissolution of House of Representative is constitutional or not?

 Possible Outcomes:-

 First of all, let’s start with first issue i.e Whether a prime minister appointed under article 76(3) can dissolve the house of Representative or not? K.P Sharma oli didn’t go through the process of obtaining of vote of confidence accordance to article 76(4) said that he didn’t have enough support in the parliament and recommended to form new government. But when the process was initiated, dramatically two claim was made, first one is by congress leader S. Deuba claiming support of 148 member and second is by sitting prime minister claiming the support of 153 member. Controversies arises here that member they are claiming support are almost more than 26 of the total member of the parliament. So it is clear that there is forgery from either one side or both. Here role of 26 member of CPN UML is bilateral. They being the member of CPN UML signed in the petition to make S. deuba as prime minister which was generally considered as unconstitutional in multi party system. But their claim was different. According to them, party cannot implement whip as article 76(5) do not deals with party but it deals with individual of person. But their statement is controversial. Because question arises whether they are count in a ruling side or opposition? After CPN UML’S step to expel 11 member among those 26, their membership in parliament is automatically void. SO it is clear that S. Deuba’s claim was void ab initio.

 But president declined both of their claim saying that both of their claim was baseless. So the second issue i.e Whether president have power to decline the claim by the member of the house to appoint prime minister under article 76(5) or not? For this issue, we have to discuss about ingredient of 76(5). There are three ingredient 

 1. Prime minister appointed under 76(3) unable to produce vote of confidence under 76(4).

 2. Any member of the house of representative can claim for the post of prime minister.

 3. He have to provide ground on which he or she can obtain a vote of confidence in the House of Representatives. The President shall appoint such member as the Prime Minister. To solve these issue, third ingredient required correct and adequate explanation. It neither talks about what are the ground need to provide at the time of claiming nor it talk about whether it is mandatory for president to appoint prime minister even if there was baseless claim or not. So we expect from supreme court to address this issue with adequate explanation.

 Judicial precedent:- 

After the Constitution of Nepal 2015 was passed, there was only one case similar to this matter whose judgment was came on 23 Feb 2021 by constitutional bench of supreme court. In this judgment supreme court clearly discussed about article 76(7). On that judgment supreme court held that 1) prime minister appointed under 76(1) and 76(2) cannot exercise 76(7). 2) Parliament is only dissolve when it cannot give any government or appointed government under 76(1), 76(20, 76(3) and 76(5) unable to get vote of confidence according 76(4). And 4) Article 85 is not substantial, it should be read with article 76.

 Conclusion:-.

 From the previous judgment and relevant provision, Question before Honorable court need to be addressed according to the essence and sprit of the constitution. Whatever the decision they give, it should be clear, adequate and with proper guidelines so that no one can take excuse from this..

Written by- LUMA KANTA BHANDARI



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