An ambitious prime minister leading a majority government with an authoritarian tendency unilaterally dissolves the lower house owing to an intra-party feud. More than a dozen petitions are filed in the Supreme Court to annul his ‘allegedly’ unconstitutional action. Meanwhile, the prime minister exploits his nationalistic image and powerful oratory skills to create intense pressure on the court to approve his actions.There are parallel protests from other political factions and civil society demanding the House’s reinstatement. Amidst this charged atmosphere, the court stands resolutely to protect the constitution, holding the dissolution ‘unconstitutional’. This is how the story of the dissolution of the House of Representatives, the lower house of parliament, unfolded in Nepal.In December 2020, President Bidhya Bhandari had dissolved the lower house of parliament on the recommendation of Prime Minister K.P. Sharma Oli, citing political compulsion necessitating a fresh popular mandate. At the time, an intra-party leadership feud in the Nepal Communist Party (NCP) was at its peak. Outmanoeuvring potential leadership challenges, Oli attempted to sacrifice the constitution and rule of law at the altar of petty party politics.The unilateral dissolution of the House and the ensuing tensions were eerily reminiscent of Nepal’s past, replete with political instability and frequent regime changes. With the seventh constitution currently in force, having had 49 governments in the past 58 years, and not a single government serving a full term in modern history, the current situation was taking the country back to square one.At the time when there is an increasing global trend of judicial deference towards the decisions of the executive, the bench comprising Chief Justice Cholendra Rana and Justices Bishowambhar Shrestha, Anil Kumar Sinha, Sapana Pradhan Malla, and Tej Bahadur K.C. reinstated the house, giving a strong message against the exigencies of the government. The summary order is significant not just on its merits but also for its implications on the constitution building exercise in Nepal.Nepal President Bidhya Devi Bhandari. Credit: Reuters/FileReasoning by the court The government had justified the dissolution on three major counts: (i) by reading Article 85 [‘Term of House of Representatives’] together with Article 76(1) [‘prime minister appointed from the party that has majority’] and 76(7) [‘Dissolution of House if the vote of confidence is not passed’] (ii) alongside international and (iii) past domestic practice. [We have discussed this in detail in our previous article for The Wire available here.]But in the court, discussions were focused more on the right of the prime minister elected under 76(1) to dissolve under the constitution and under the basic principle of parliamentary system. Salient points from the judgement are discussed as follows.Right to judicially review: The government had questioned the competence of the court to judicially review the government’s decision, but the court, citing a catena of precedents where it had entertained the review of house dissolutions, firmly stated that when the question about the constitutional breach arises, it will conduct judicial review irrespective of the issue’s overlap with politics.Constitutional parliamentary system: The government asserted that the right to dissolve the House is vested as a prerogative (inherent) right under the parliamentary system to the prime minister. The court categorically rejected such a legal position, stating that Nepal being a country with a written constitution, any such exercise of power must be based and bound by the constitution.The court read Article 74, which states Nepal to be a multi-party, competitive democratic republic parliamentary system, with other articles of the constitution like barring institution of no-confidence against the prime minister before two years of assuming office [Article 100 (4)]; the requirement to follow the principles of inclusivity while forming the cabinet [Article 76(9)] to emphasise on the indigenous framework of the constitution. Therefore, the court stated that given the difference in the system, the past precedents and international practices from the traditional west ministerial system would be inapplicable.Also read: How Nepal’s Supreme Court Upheld Dignity of Migrant Workers Without Diluting COVID FightDissolution and constitutional framework: The government had argued that since the Nepal Communist Party (NCP) and its parliamentary leader Oli commands the majority in the House [Article 76(1)] and there existed no possibility of formation of an alternate government, hence, the decision to dissolve the parliament was legitimate. The court, however, rejected the government’s proposition based on historical lessons and the constitutional provision.Describing Article 76, which is concerned with the formation of the cabinet, stipulates that the president should first invite the leader of the party commanding majority [Article 76(1)] to form government, if it fails then through the leader of a coalition of parties [Article 76(2)], and if that too fails, through the leader of a single largest party [Article 76(3)], and if that also fails, through ‘any member’ with the potentiality to command majority [Article 76(5)].However, if the leaders elected through Article 76 (5) fail to garner the vote of confidence, then finally, the house can be dissolved pursuant to Article 76 (7). Moreover, the court also looked at the history of frequent premature dissolutions to infer an intention of the framer behind the way Article 76 was drafted.After reading Article 76, the court opined that the constitution does not imagine the prime minister is elected under Article 76(1) and underscored that the sequential preconditions as stipulated under Article 76 cannot be bypassed.Settle intra-party dispute in proper forum: Along with the constitutional issue, the court also made observations regarding the disputes within political parties. The court posited that the constitution binds both the political party and elected representatives and they should act responsibly. In case of conflict in political parties, the court observed that the resolution should be done through bylaws of the party or the law regulating political parties.The court stated that a written constitution embodies the principle of limited government where all the organs of the State must act within the constitutional limitations while maintaining proper checks and balances. Based on all these, the court declared the dissolution of the House to be unconstitutional and its effect null and void and directed the reinstated House to call for a session within 13 days from the judgment. The same has been slated for March 7.K.P. Oli shaking hands with Pushpa Kamal Dahal “Prachanda”. Photo: ReutersMissed opportunities The decision to reinstate the House has avoided the derailment of national politics from the constitutional track. The order, however, missed an opportunity to set clear principles on two broad counts: i) to address the issue of dissolution as a whole taking into other circumstances in mind (ii) the role of the president as the ultimate protector of the constitution.(i) Framed broadly but answered narrowlyOne of the issues that the court framed was whether the dissolution of house [altogether] is in consonance with the constitution of Nepal. But to answer this in the negative, the court took only a particular situation in mind without considering potential situations which could necessitate or lead to the dissolution of the House.While making a distinction between dissolution and arbitrary dissolution, the court has in effect said that any dissolution that does not follow the sequential stipulations under Article 76 is arbitrary. This is a narrow and highly textual reading of the constitution.The situation before the court was one where the house was not in session, the prime minister had not presented an objective reason necessitating dissolution and the majority that he commanded was questionable. In this specific fact of the case, invalidation of dissolution was a logical conclusion.Also read: We Will Get Territories Back From India: Nepal’s PM OliBut does every process of dissolution that does not follow a route provided under Article 76 arbitrary? We argue that it does not. For instance, when the government with an undisputed majority in the parliament decides to dissolve the House or if the House itself passes a resolution to dissolve. In such situations, the court’s emphasis on the sequential fulfilment of the procedure as mentioned under Article 76 may rather elongate political deadlock allowing instability to ensue, which is not the intention of the framers of the constitution.It is important to make a distinction between the right of the parliament [to self-dissolve] and the right of the executive [to unilaterally and arbitrarily] recommend dissolution. When the House itself passes the motion for dissolution, this is not an exercise of dissolution powered by the executive. The court did not envisage such a situation and plainly held dissolution without fulfilment of preconditions to be unconstitutional.Therefore, the court should have either interpreted the constitutional provisions according to the breadth of the issue or it should have reduced the scope of the issue tailoring only to the particular circumstance before it. Taking the prior approach would have served the purpose of creating a clear constitutional principle on dissolution taking a wider set of circumstances guiding potential deadlock in the future.(ii) President’s role in dissolutionThe court underestimated the role of the president in the whole crisis. The court should have utilised the opportunity to deliberate on the role of the president under the current constitutional scheme – whether she has to apply her mind and resist recommendations or just be a rubber stamp in each situation. This is a debate that will arise recurrently in the days to come.Under the constitution of Nepal, the president is the protector of the constitution [Article 61], yet the role has been limited by the requirement to take consent and recommendation from the council of ministers [Article 66]. This was an opportunity where the court could have harmoniously constructed these provisions to provide a guidance for the extent and limitation of the president’s power and role.This was all the more important considering the president’s actions have come under immense controversy as the president had been approving each of the government’s subtle attempts at institutional subversion.But the language of the order reduces the president to hold merely a passive role and focused only on the prime minister while in the whole scheme of invoking prerogative power is the right vested with the head of the State.Birendra International Convention Centre, where the Nepalese parliament meets. Photo: Wikimedia Commons CC BY-SA 3.0Re-emphasising faith in judiciary and preservation of constitutional values Politically, however, pundits are blaming the court for further prolonging the political impasse. They express fear of a chain of unstable coalitions, potential horse-trading, and bribery blemishing the entire democratic process much like in the 1990s. Though there are such possibilities, deducting the order from consequentialist realpolitik unfairly shifts the burden of parliament’s impropriety to the court.Also read: Map Issue or Development?: Nepal-India Ties Remain Under Cloud of Agenda SettingIt is the responsibility of parliament to maintain the sanctity of the institution and prevent any criminal activities and constitutional bodies and citizens to hold them accountable. But to expect the court to remain a mute spectator and assent to illegal acts for fear of ills in parliament in future is neglecting the intrinsic value of rule of law and constitution.The expectation towards the court to decide on purely consequentialist concerns renouncing constitutional principles is a misunderstanding of its role. The Supreme Court stood its ground and interpreted the constitutional value, vision, principle of the historical struggle of Nepali people encompassed in the constitution.Importantly, the judgement is also a strong message from Nepal’s judiciary – giving moral support to the judiciaries elsewhere in the world which are dissuaded from taking on populist leaders for fear of unpopular backlash. It is also commendable that the bench wrote the order in an accessible manner and resisted the temptation among judges towards grandeur, to write a book instead of judgement, especially in cases that garner wider political interest.One thing is definite: this decision, although with some limitations, has not merely reinstated the parliament but also the faith of people in the judiciary.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.