The political climate in Nepal over the past few months has been tumultuous, to say the least. The country has seen an intra-party feud among two leaders of the ruling party (K.P. Sharma Oli and Prachanda), prorogation of the House amidst rumours of the discussion on the vote of no-confidence against Prime Minister Oli and the promulgation of ordinances to install Oli’s favourites in crucial constitutional bodies, thereby distorting checks and balance. All of this happened while many took to the streets demanding the restoration of the monarchy.
Among several desperate and controversial moves, Oli’s recent decision to unilaterally dissolve the House of Representatives is a flagrant violation of the constitutional text and spirit. This decision, that coincides with the 60th anniversary of the infamous Royal coup of 1960 dissolving the first elected government and parliament of Nepal, is not only bad optics but also an inroad towards yet another historical blunder.
Conducting fresh elections by itself is not undemocratic; the government may refer to people for a fresh mandate. However, we argue that arbitrarily dissolving the House to fulfil the prime minister’s vested interests is not in consonance with the text and spirit of the reformed parliamentary system adopted under the extant constitution of Nepal.
Preface to the issue
In the 2017 general elections, Communist Party of Nepal-United Marxist Leninist (CPN-UML) and CPN (Maoist Centre) formed a broader Left electoral alliance against the ‘democratic alliance’ led by the Nepali Congress. The alliance promised a stable government, as it saw instability as a major culprit for Nepal’s developmental woes. Consequently, people gave a clear mandate to the Communist alliance, and it won 175 of the 275 seats in the federal parliament and formed governments in six of the seven provinces.
What started as an electoral alliance led to the merger of the two major leftist parties, to form the Communist Party of Nepal (CPN). It promised to be a united front having the force to take Nepal to a prosperous future, levelling all the regular bottlenecks. But instead, the new party was mired in an internal quagmire. With two prominent leaders, Oli and former Prime Minister Prachanda, constantly in a battle to hold power inside the party as well as in the government, Nepal’s political horizon looked unstable once again.
As the internal rift was boiling, Oli brought two ordinances in April 2020 – one amending the Political Parties Act, making it easier to split the party, and second, amending the Constitutional Council Act, making it easier for him to nominate persons of his choice to crucial constitutional bodies. After severe criticism, both within the party and in public, Oli backtracked, bringing about a temporary truce. However, as he sensed a no-confidence motion may be brought against him, Oli prorogued the parliament.
As the constitutional requirement a house sitting every six months was approaching, and he had to plan for contingencies, Oli again brought the ordinance to amend the Constitutional Council Act allowing him to nominate his favourites at the helm of several constitutional bodies, including the anti-graft body. This eventually forced disgruntled members of the parliament to register a no-confidence motion despite the house not being in session and there being no special session called. Sensing the loss of majority in both party and the House, the prime minister finally resorted to the desperate move of dissolving parliament.
President and prime minister in a nefarious alliance
Before dealing with the constitutionality of dissolution, it is important to understand how the president and the prime minister have been in cahoots throughout. Whenever the prime minister has recommended a controversial ordinance to largely fulfil his own personal political motive, the president has swiftly granted approval despite widespread opposition. One such ordinance is the one to amend the Constitutional Council Act.
Given extreme partisan politics and the tendency to put loyalists in crucial constitutional positions, the constitution envisages a Constitutional Council with the sole authority to fill officials in constitutional bodies. The six-membered council chaired by the prime minister includes the chief justice, speaker of the House of Representatives, chairman of the National Assembly, leader of the opposition and deputy speaker of the House of Representative. The ordinance diluted the quorum requirement for the meeting from five to three, and required only a majority of members present to make decisions – virtually allowing the prime minister and another member from his own party to take decisions on appointment. This is of grave consequence as the checks and balances among the ruling and opposing parties within the constitutional scheme stands emasculated through the executive action.
There are glaring doubts surrounding the legality of the move – whether the situation renders it ‘necessary to take immediate’ action for the issuance of an ordinance, especially when the house was to be in session within this month; should or can the ordinance be used to bring about long haul changes, permanently impacting the check and balance mechanism envisaged by the constitution and the parliament, etc.
Moreover, the president unhesitatingly issued the ordinance without seeking wider political consultation and legal advice, even though an ordinance with similar effect had to be rolled back when it faced public backlash in April this year. More importantly, some cabinet members had even openly declared that there was no discussion about the ordinance at the council of ministers. Such an act by the president is unbecoming of the high office and its duty as a protector of the constitution. In all these actions by Oli, the president has been complicit, approving the prime minister’s decisions with uncommon ease and extraordinary haste.
Making the constitution ineffectual
The president has approved the prime minister’s recommendation relying on constitutional provisions, the basic spirit of a parliamentary system based on past practice in Nepal and international practice. Each of these grounds demands close scrutiny.
Reading the constitution
The president has invoked Articles 76(1), (7) and Article 85 to approve the dissolution of the House.
Article 85 states that term of the House shall be of five years ‘unless dissolved earlier pursuant to this Constitution’. Article 76(7) is the only provision under the constitution that envisages a dissolution of the House. Under Article 76, the president has to exhaust all efforts to form the government, either by the leader of the party commanding majority [Art.76(1)] or leader of a coalition of parties [Art.76(2)] or leader of a single largest party [Art. 76(3)] or ‘any member’ with the potentiality to command majority [Art. 76(5)], only then the House can be dissolved on Prime Minister’s recommendation under Article 76(7). Titled as ‘Constitution of Council of Ministers’, a bare perusal of Article 76 makes it clear that the article is meant for the formation of the government and in case after several efforts if there is no definitive possibility of forming government, the House can be dissolved to conduct fresh elections. It cannot be used to dissolve the House midway.
Moreover, the provision relating to the dissolution of the House was not constitutional silence but deliberate curtailment on the prime minister’s power to unilaterally dissolve the House. In the 1990’s Constitution, there was an explicit provision under Article 53 whereby the King could dissolve the House on the recommendation of the prime minister. Taking a lesson from an older system which perpetuated frequent dissolutions and midterm elections, the new constitution allowed only limited circumstances under Article 76 (7) for dissolution of the House. Therefore, a clear departure is visible from the earlier provision vis-à-vis the powers conferred to the executive head to dissolve the parliament. No wonder the release from the president’s office communicating the dissolution dubiously refers to past and international practices to cloak the illegality of a move that otherwise holds no water under the current constitutional scheme.
Although novel under the present Constitution, dissolution of the House is by no means unprecedented in Nepal. In the 1990s, the Head of the State had dissolved the house multiple times on the recommendation of the prime minister. Though the Supreme Court refused to entertain petitions challenging the dissolution of the House in the early cases, it changed its stance later as frequent dissolutions were slowly becoming a norm. The case involving Prime Minister Manmohan Adhikari, who was leading a minority government at the time, recommended dissolution of the House.
The Supreme Court, in the case of Rabiraj Bhandari and Ors vs Prime Minister Manmohan Adhikari and Ors,(1995) intervened to reinstate the parliament. Similar to the present controversy, Adhikari at the time had recommended dissolving the House as a preemptive action to prevent registering and discussion of a no-confidence motion. The court viewed the act as a circumvention of parliament and questioned the motive of Adhikari to resort to dissolution. The court emphatically stated that the power of dissolution should not be used until all alternatives for forming the governments within the House are explored.
The Rabiraj case is even more important given that the Constitution of 1990 had explicit provision under Article 53 allowing for the dissolution of the parliament, and even then the court had quashed the move declaring it unconstitutional. Therefore, under the new constitution when there exists no such power nor the unlimited authority to executive to dissolve, such exercise of powers is not only in defiance of the constitutional antecedent but also against its spirit and text.
Parliamentary system and Nepal
Under the parliamentary system, ordinarily, the prime minister exercises the right to dissolve the House and is generally used as a threat to discipline the parliamentarians. In 2011, in Canada, when the opposition party united to pass a vote of no confidence, Stephen Harper decided to dissolve the parliament to go for a fresh election. In India and across the globe, there are many such examples of dissolution and an early election. Therefore, it is not the contention that in a parliamentary system, the prime minister does not have the authority to recommend the dissolution of the House. But to cite international practice as a justification to act similarly in Nepal under the current constitutional framework is to misunderstand Nepal’s ‘reformed’ parliamentary system.
Given the history of hyper politicisation and unstable government, a reform was made under which parliamentary motion of no-confidence is not allowed to be tabled for the first two years of appointment of the prime minister, and for another one year after the date of failure of the motion of no confidence once tabled [Article 100(4)]. This reflects the commitment to stability under the current constitutional scheme and the patience with which the parliament should allow the cabinet to function. However, after the passage of the time stipulated, resorting to the dissolution of the House would frustrate the constitutional objective of maintaining stability while also exercising parliamentary oversight on the functioning of the executive.
According to the constitution, the prime minister along with the council of ministers are to be collectively as well as personally accountable to the parliament and not the other way round. Therefore, if this relationship is to be explained through a metaphor – parliament is the dog and the executive is the tail. A dog wags the tail; the tail cannot wag the dog.
Moreover, even in the UK, the origin of the parliamentary system, courts have been curtailing executive discretion over a wide range of subjects. In 2019, when the Johnson government decided to prorogue British parliament with an intention of impeding parliamentary scrutiny over Brexit deal, a court in the Miller case (2019) ruled that the act of prorogation to frustrate the parliament from carrying out its constitutional function as a body responsible for supervising the executive, a court may intervene in such a scenario.
Judiciary: Sentinel on the qui vive
Parliament is the principal organ elected directly by the people. If the executive, a creation of the parliament under the scheme of separation of powers practiced in our system, uses the power to frustrate parliament from exercising its authority, it would not only greatly undermine parliament’s authority but also cause grave injustice to democracy. By implication, it undermines the voice of the people.
Oli’s actions are blatantly unconstitutional, flagrantly undemocratic and a recipe to repeat historical blunders. Moreover, the president’s reliance on earlier practice, which was explicitly rejected by the Supreme Court in later years even under the earlier constitutional scheme, is clearly disingenuous. Only the judiciary stands between the authoritarianism slide and democracy. Nepal has a painful history with authoritarianism and blatant constitutional violation by the monarch; we cannot afford to repeat the same with elected leaders. Importantly, an internal party dispute cannot and should not hold the constitution hostage. With parliament dissolved and the executive exercising unconstitutional power, the court has to assume a counter-majoritarian role to safeguard the constitution.
Robin Sharma is a graduate of NALSAR University of Law, Hyderabad and holds an LLM from Tel Aviv University, Israel. Hardik Subedi is a graduate of NALSAR University of Law, Hyderabad. Both authors are lawyers based in Kathmandu.