Article 85 provides for ‘five year’ tenure of the HOR unless ‘dissolved’ earlier in accordance as this Constitution which appears to allow dissolution, as stated earlier, only if a defeated Prime Minister under Article 76 (7) recommends for it.
- Preliminary Observations
Nepal’s House of Representatives (lower house of parliament) has been dissolved by the President on Prime Minister’s recommendation,and dates for new elections have already been announced.Nearly fourteen PIL cases are being heard at the Supreme Court’s Constitutional Bench against government’s decision of dissolution. No stay order has however been given by the court. Any utterances that is directly or indirectly intended to influence or undermine the five member Constitutional Bench headed by the Chief Justice of the Supreme Court is certainly unhealthy. It is tantamount to violation of constitutional principles, politico-legal morality, and judicial independence. Recently published comments and interviews of lawyers, political scientists, former justices, including the four former Chief Justices’ joint statement, is very unusual and constitutionally questionable as this may impose pressure on the court. Even the frequent street shows attacking subjudice cases of political parties that played crucial roles at the Constituent Assembly and advocated independence of judiciary and democracy, undermine the value of the Constitution, rule of law and the justice system.
The main purpose of writing this article, however, is not to seek answer to any serious constitutional question under court’s consideration. Neither it is meant to support dissolution, nor to oppose it. Rather, it is to provoke constitutional scholars and political scientists to expedite this opportunity in order to save our unique, undefined, parliamentary Federal Constitution from further derailment. This preliminary observation of issues involved in the abrupt dissolution of the Nepal’s House of Representatives (HOR) by the Prime Minister could be little helpful both to the Constitutional Bench constituted to hear the dissolution related cases, and the lawyers representing both parties, including amicus curies. Without unnecessarily stretching the arguments on legal paradoxes and underlying political intricacies, an attempt has been made herein to directly hit the ball that may roll in the court for days to come.
A simplified perusal usually catches the core of the disputed subject.Blame of biases in a high voltage court atmosphere of extremely divided political and legal communities, has to be risked in the national interest and in favour of immensely minimized federal constitutionalism and the rule of law.
- Issue of Constitutionality
At the outset, the dissolution of the HOR declared by the President of Nepal on the recommendation of Prime Minister KP Oli under the present Constitution appears prima facie unconstitutional, as raised in the petitions and comments of many legal experts.However, its political dimension has been polluted right from the beginning by senior politicians, especially of the ruling parties, due to their inherent,acute in house differences.The obvious victims of their political anarchism were the nascent federal Constitution and its institutions, such as presidency, parliament, premiership, political parties, constitutional council, and even judiciary. The consequence of infighting and dirty political games was the ‘early termination’ of the HOR creating political uncertainty and constitutional vacuum. But a call for an ‘early poll’ is a twilight of little hope for people to censor the political party’s poor performance and dirty games through electoral ballots. An indication of the opposition parties, mainly Nepali Congress and the RPP, to participate in the poll if the Supreme Court clears the way is however a positive sign.
a) Constitutional Power of Dissolution
The governing principles of textual interpretation exploring the original meaning of the words of the Constitution indicates that when the Parliament exhausts all given options to produce a new Prime Minister, the last candidate of President’s choosing if defeated at the floor of the House, has a right to recommend dissolution. Once the Parliament fails to produce a new Prime Minster under Article 76, such a defeated Prime Minister is in fact mandatorily obliged under Article 76 (7) to recommend dissolution before the President who is also constitutionally obliged to accept it. Interestingly, however, the Constitution has an inherent cleavage in the Article 76 (7) which even the eagle eyes of well-known constitutional experts have escaped the sight of it. The cleavage actually looks dangerous.
Many judicial luminaries, including former Chief Justices and Speakers, have difficulties to penetrate into the deceptive cleavage (a gap). The gap between the provisions allowing dissolution as recommended by defeated Prime Minister under Article 76 (7)and the space for early termination of HOR by the Prime Minister holding absolute majority in the House under Articles 74 and 85, is deceptive and wide. No one has given enough thought as to what happens, for example, if the defeated Prime Minister of presidential choice does not recommend dissolution to the President as prescribed by Article 76 (7) ?The President cannot declare dissolution suo motu. The defeated Prime Minister may otherwise continue to head as caretaker government until a new Prime Minister is not appointed. This is a risky constitutional fault-line hidden in the Constitution and remains as a erroneous clause. The members of the Constitutional Bench have the responsibility to bank on the principle of harmonious interpretation to clear the fault-line based on constitutional conventions and global parliamentary practices when the text and words of the Constitution alone do not help answer the question.
b) Dissolution Options
Article 85 provides for ‘five year’ tenure of the HOR unless ‘dissolved’ earlier in accordance as this Constitution which appears to allow dissolution, as stated earlier, only if a defeated Prime Minister under Article 76 (7) recommends for it. This particular provision for dissolution of HOR operates only when the Parliament is unable to produce (or elect) a new Prime Minister either right after elections of HOR or when a Prime Minister’s position is vacant due to resignation or defeat in his vote of confidence motion. In this sense, the provision of dissolution prior to ‘automatic dissolution’ at the end of HOR’s five year tenure becomes dysfunctional and inoperative unless a defeated Prime Minister is not prepared to go for dissolution. While dealing solely with the constitutionality of the ‘faulty dissolution provision’ under Article 76 (7) and Article 85, the Constitutional Bench will have to seriously consider possible options to ensure effective operationalization of Article 76 (7)even if a defeated Prime Minister on the floor does not recommend dissolution with pleasure. Moreover, the question of incumbent Prime Minister’s power of dissolution under Nepal’s reformed parliamentary system exclusively based on Articles 74 and 85 remains to be explained yet.
Otherwise, all arguments in favour of ‘limits’ on dissolution created by the norms of constitutionalism under our 2015 Constitution will strengthen the hands of defeated Prime Ministers for playing unfair games against the values of the rule of law and constitutionalism of parliamentary dissolution. Thus, simply challenging the constitutionality of dissolution is not enough.
c) Undefined Article 74 ?
In addition to clarifying restricted meaning of Articles 85 and 76 (7), the scholars and advocates of political constitutionalism have to work hard to innovate a new way to deal with the issue of establishing Prime Minister’s power-relationship under unique three tier federation exercising state authority as directed by Articles 2, 56-58 and Schedule 5-9 with parliamentary systemic executive power as authorized by Articles 74, 75 and 76 (7). The residual authority of the Federal Government under Article 58 and Schedule 5 (35) enables the Central Executive give wider universal meaning to the undefined federal parliamentary system under Article 74.
Despite personal political allegiance, the added burden lies on the amicus curies at this juncture to offer manageable constitutional meaning and amicable political options. Since the present Constitution is a multi-order federal constitution imbibing several new elements of constitutionalism, many of the old precedents and principles developed by earlier larger constitutional benches may not be fully applicable. New innovations may therefore be required to respond to many challenging politico-constitutional issues raised in the present case of dissolution. The amicus curies may also have to ask the court to consider possible consequences of dealing with a political question as to what would happen if the court issues writ orders and declares the dissolution unconstitutional.In this situation, both the President and Prime Minister will be morally obliged to immediately resign, and the HOR will return to status quo ante. The Vice President officiating as president will summon the HOR sessions, and a process to elect a new Prime Minister under Article 76 has to be initiated. The country will have then a new task to hold another election to choose a new President, pushing the country to another round of political instability. The issue of ‘constitutionality’ cannot be answered simply because many former Chief Justices and Supreme Court judges have opposed to dissolution. Each member of the Constitutional Bench mandatory headed by the incumbent Chief Justice will have to apply his own mind fairly, independently and with competence, keeping national interest and the future of the federal constitutional order at the top priority.
- Arguments favoring Dissolution
Assuming that there was no writ petition filed at the Supreme Court, the country at this point would already have gone half way through the parliamentary polls seeking fresh mandate for the potential new government. The PIL cases have now put a break on the speed of the preparatory work. Nevertheless, the National Election Commission will continue preparing for the electoral management unless the Supreme Court gives a verdict against. Moreover, the Government claims it had consulted the Commission prior to dissolution of the Lower House before announcing the dates for early elections as per Section 6 (1) of the House of Representatives Election Act 2074 (BS). This provision does not prevent the Prime Minister to declare early elections for the fresh poll at a date of his choice, and Article 74 does not prohibit a ruling Prime Minister under the present hitherto undefined “plural, multiparty, federal parliamentary system” to dissolve the House and seek people’s fresh mandate.If his own party, the Speaker, and the opposition do not cooperate but create obstructions in governance, the Prime Minster may count this as ample ground for dissolution in a normal situation.
a) Unique Federal Parliamentarism
Nepal has a three tier federal governance model of unique character. The Pluralistic, Multiparty, Republican, Federal Government System is the basis of parliamentary governance structure at the centre (Article 74). The Constitution no where defines this structural parliamentary model ?Unlike India and UK, the Executive Power rests in the Council of Ministers headed by a Prime Minister (Articles 75, 76, 77).The Federal Parliament is bicameral, and President is not a part of the Parliament as is in India and UK. Seven Provincial Sub-governments are also designed as parliamentary responsible to produce Chief Ministers accountable to the Provincial Legislature like the Federal Parliament. Although Provincial Legislatures are unicameral and can be dissolved before their normal five year tenure,interestingly, however, the third tier of 753 local sub-governments are designed afterpresidential model, and unlike the Federal and Provincial legislatures, it cannot be dissolved before their five year fixed term. The Executive and Legislative Heads are the Mayors directly elected by the people and cannot be removed earlier.Hence, the very nature of parliamentary governance model under Nepal’s constitutional system, especially limited at the Federal and Provincial levels, needs to be seriously examined, understood and redefined. Since the Constitution does not define as to what is the ‘pluralistic federal parliamentary governance model’ at the federal level under Article 74, it gives flexibility to the Federal Executive (ie, Council of Ministers) to explain under Articles 58, 75 and Schedule 5 (35)the meaning of new parliamentary model. So the power of dissolution of HOR, with its normal five year tenure (Article 85), is not so easy to understand as has been reflected in the PIL petitions before the Supreme Court. The Constitution and the underlying principles of each provision has to be thoroughly read in totality to digest the real meaning of federal parliamentarism and House dissolution.
b) Federal Residuary Power
Thus, a general review of Articles 2, 56-58, and Schedule 5 (35)read together, indicates that the Federal Government headed by Prime Minister is authorized to exercise ‘residuary executive power’ to interpret the linkages between Article 74 and Article 85 with regard to overall scope of ‘parliament dissolution’, while the Article 76 (7) is restrictively applicable only in the context of electing a new Prime Minister. The scope of Article 74 is certainly wide and it offers enough space to allow a Prime Minister to dissolve the lower House earlier than its five year tenure in situations other than the floor test alone as narrowly raised by petitioners. Petitioners have ignored to explain issues, such as: what happens if an annual policy statement of the President at the House is not approved by the Parliament ? Or if an annual budget is not passed ?If the Prime Minister’s own party repeatedly threatens to dislodge him or impeach the President, he does have options either to resign and go for seeking a vote of ‘confidence motion’ at the House or take a risk to go to the people to democratically teach a lesson to the trouble makers asking them to face the people through elections ? Should the apex court deny the ‘Executive Head’ from going to the people ? Will not it be a dire intervention of the apex court on an exclusive ‘political question’, not related to any constitutionality ?It is the Prime Minister as a Leader of the House, not the Constitutional Bench of the Supreme Court which is the nation’s final arbiter (Articles 128, 133, 137), who has the first right of interpreting constitutional provisions related to parliamentary practice, unique federal parliamentarism, and parliamentary dissolution ?Distrusting a ‘constitutional bench’ (Article 137) created after a long debate at the Constituent Assembly for giving final meaning to the constitutional provision in itself is an expression of distrust on the Constitution ? The court cannot simply abdicate its inherent judicial power of constitutional interpretation through ‘constitutional bench’ simply because a few lawyers demand so. Under a globally acceptable comparative parliamentary practice, there is nothing to prevent the Prime Minister to rely on the constitutionalism of yet undefined federal parliamentarism and dissolution under Articles 2, 5, 56, 57, 58, 74 and 85. Prime Minister’s power to declare dissolution and early poll, differently from Article 76 (7),is supported by Section 6 (1) of the House of Representatives Election Act 2074 (BS) and international conventions.
- Options and Way out
As briefly mentioned above, defining an undefined issue related to a new constitutional and parliamentary order is certainly a big challenge for the five member Constitutional Bench, a hot spot of public attraction and symbol of people’s judicial faith. Clearly the design of constitutionalism of dissolution under federal multi-party parliamentarism has offered two options for parliament dissolution.Firstly,the option relates to a defeated Prime Minister when the House is unable to produce a new Prime Minister under Article 76 (7);and secondly, the option is little vague but offers wider space for dissolution to the incumbent Prime Minister (in exercise of his federal executive power) under Articles 74 and 75 together with ‘federal residuary power’ under Article 58.This option is further supported for implementation by Section 6 (1) of the House of Representatives Electoral Act 2074 (BS) and comparative international parliamentary practices.
The court (judiciary) normally does not prevent the Executive from going to the people on valid political grounds presented by the ‘Executive Head’ based on the principles of the separation of powers and parliamentary accountability to reach the people for fresh political mandate to govern. Only on exceptional situation involving mixed constitutional and political questions, court may intervene against executive decision to kill a parliament.
The comparative parliamentary experiences of the democratic world show different ways of implementing parliamentarism that allows options to reach out to the people in the name of ‘political stability’. Political stability and ‘political flexibility’ go hand in hand; both are opposed to ‘political rigidity’. Reforms are always welcome but for the good.
Reforms introduced under the Fixed-term Parliamentary Act 2011 in UK, implemented since 2015, in the name of political stability, acutely tied the hands of several Governments preventing the Prime Minister from carrying out urgent tasks. In 2019 AD alone, three subsequent recommendations of the British Prime Minister to dissolve parliament were denied by parliament as the Act required parliamentary endorsement. Consequently, both the Conservative Party and Labour Party were impelled to include in their party manifestos that the Fixed Term Parliamentary Act of 2011 be repealed. They are now preparing to introduce a bill to do away with the arrangement of restrictive dissolution that crippled the hands of the Prime Minister and the government. So,such restrictive measures against dissolution experimented under the matured common law parliamentary system in the name of stability has not worked.
In conclusion, let the sharp brains of the brilliant lawyers offer sufficient materials to help enrich wisdom of the learned justices of the Constitutional Bench to pick up the right option for deciding the cases in hand constructively for the growth of future of Nepali Constitutionalism and Parliamentarism. Let no external pressure prevent the Constitutional Bench make a bold right decision.
Dr. Dhungel is Professor of Constitutional Law and Senior Advocate