The dissolution of Nepal’s House of Representatives (‘HoR’) last December and a subsequent constitutional crisis sparked great legal debate in the mountain kingdom that came to a head last month with an historic Supreme Court judgment holding the dissolution unconstitutional. Nepalese law students Smriti Phuyal and Smriti Pantha from NLU Delhi and Kathmandu University School of Law file this exclusive report for JURIST from Kathmandu.
Initially, in 2018, K.P. Oli was appointed as Prime Minister to form a coalition government of the Communist Party of Nepal (Unified Marxist–Leninist) and the Maoist Centre. Later, with the merger of these parties, K.P. Oli led the majority government as they commanded 174 seats out of 275. This gave Nepalese citizens the hope of political stability and everyone was expecting a better turn in the political scenario of Nepal.
In December 2020, the Prime Minister’s tussle with political parties fueled him to make a surprise move of unilaterally dissolving the Parliament and the announcement for new elections. This took a sharp turn in the political scenario that brought a series of debatable events. Later, the Constitution Bench of Nepal reinstated the Parliament and ruled that the dissolution of the House was “unconstitutional” on the ground that there were still possibilities of forming a new government as per Article 76 and its sub-clauses. The HoR was prevented from sinking by the Supreme Court (‘SC’) only to be blown away by another wave of political instability that was coming its way.
The wave began on 10 May 2021, when on the recommendation of Prime Minister K.P. Oli, President Bidhya Devi Bhandari summoned a Parliament session to obtain a vote of confidence for his government. PM Oli lost the trust vote which subsequently led the President to call on parties to form a new majority government. With the infighting among the parties, parties were unable to form a coalition government. Then, K.P. Oli in his capacity as the leader of the largest political party was reappointed as Prime Minister for being the leader of the party having the highest number of members in the HoR as per Article 76(3) of the Constitution of Nepal. But Oli remained Prime Minister without fulfilling the constitutionally mandated condition of a trust vote.
PM Oli and the leader of the opposition party, Sher Bahadur Deuba, staked separate claims for the formation of a new government by submitting letters of support from lawmakers to the President. The President invalidated the claims of K.P. Oli and Sher Bahadur Deuba to form a new government and cited that there was no basis to the claims of both PM aspirants to win the vote of confidence as per Article 76(5). The HoR was dissolved here again. The political instability was at its peak and citizens of Nepal, yet again, pinned their hopes on the decision of the Supreme Court.
Last month, the five constitutional bench judges of the SC annulled the government’s decision to dissolve the HoR and rendered a historic judgment on the constitutionality of the same. The court rescued the sinking HoR again by declaring that the dissolution of Parliament by PM Oli was unconstitutional. This landmark decision of the SC is a giant step towards protecting the fundamental principles of democracy and rule of law in Nepal. Since the Parliament dissolution case is a constitutional issue, the court emphasized that such dissolution has to be in accordance with the constitutional strands.
Pursuant to Article 76 of the Constitution, the procedure for the selection of the Prime Minister and formation of the government needs to be interpreted harmoniously. The Constitution forbids the dissolution of HoR if (a) a new Prime Minister could be appointed and (b) the newly appointed Prime Minister could obtain a vote of confidence. From this, it is clear that before invoking Article 76(7) by the Prime Minister to recommend house dissolution, the conditions of Article 76(5) have to be fulfilled.
In the situation at hand, Sher Bahadur Deuba, a member of the House, had claimed the prime ministerial post on the grounds of Article 76(5) by proving a majority at the time of dissolution. It clearly depicts that he could win the vote of confidence, yet, the President exceeded its jurisdiction and rejected the claim on the recommendation of K.P. Sharma Oli. The court ruled that the jurisdiction of the President doesn’t allow a discretionary power to reject the House’s bid for prime ministership under the Constitution. It is constitutionally mandated to appoint the candidate who can show that he/she can stake a vote of confidence. The President only has the power to check whether the prima facie facts are enough to get a vote of confidence that has been claimed. For which the President ought to apply one’s own conscience and sense of integrity to accord with the rule of law. This is a constitutionally settled rule. The SC added that the jurisdiction of the President exceeded when the decision to dissolve the HoR was supported without floor testing.
Further, the President had stated that the lawmakers who supported Deuba’s bid for prime ministership could face action under Nepal’s anti-defection laws and consequently lose their seats in the HoR. To this concern, the SC held that no political parties have the power to issue whip to the lawmakers who support the formation of a government under Article 76(5) on the rationale that those lawmakers should be given an opportunity to use their wisdom and exercise their power with honesty, irrespective of their political party representation. The court also emphasized that Article 76 of the Constitution has to be followed in letter and spirit and if it was used in any manner so as to obstruct the effective running of the government, it could frustrate the basic tenets of constitutionalism. Thus, the government’s use of power to dissolve the HoR under Article 76(7) boiled down to abuse of discretionary power, political instability and unnecessary expenditure.
Additionally, the court declared that the Prime Minister appointed under Article 76(3) cannot form a new government without first obtaining a vote of confidence. Such a Prime Minister cannot dissolve the HoR based on his objective analysis in the name of political instability and fresh mandate. The SC discussed precedents with respect to the dissolution of HoR in Nepal during the 1990s and other countries, which highlighted that the dissolution of HoR wouldn’t reduce political instability in the country.
With this, the SC declared the decision of the Government to dissolve HoR unreasonable, unfair and unconstitutional. It also issued a writ of mandamus to appoint Sher Bahadur Deuba as a new Prime Minister under Article 76(5) of the Constitution and demanded Deuba to obtain a vote of confidence within 30 days from the date of his appointment. As anticipated, on 13 July, Deuba won the vote of confidence and became the new Prime Minister of Nepal.
Several comments have been made on the verdict of the Supreme Court. Subsections of Article 76 have become the most discussed provisions of the Constitution of Nepal, both in courtrooms and legal academia of the country. Constitutional scholars, lawyers, concerned stakeholders, and at large, the Nepalese civil society have different opinions regarding this verdict. One side of the group considered the verdict to be too loud. They remark that SC has overstepped its mandate when it issued a writ mandamus to appoint Deuba as Prime Minister. Another side opines that judicial activism was necessary to meet the urgency demanded by the present situation of Nepal. Dr Bipin Adhikari, a constitutional expert of Nepal, stated that no country has or has had the practice of SC appointing the Prime Minister but it doesn’t refrain the SC from doing so. It is because the pretext of the situation in which the judgment was delivered gave reasonable grounds for the court to think that if it hadn’t made an appointment of the Prime Minister, execution of the judgment may not be carried out as envisioned and the values and principles on which the court rendered its decision may not be upheld.
People are free to choose their sides and have opinions on this landmark judgment. But what matters the most is that the SC saved the HoR from dissolution and restored both the political stability and people’s faith in the judiciary. This surely is the judgment that you would turn to when the issues of Constitution, constitutional morality and constitutionalism in Nepal arise.
