SC urged to seek record of discussion in Constituent Assembly about House dissolution

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Kathmandu-Petitioners against House dissolution by President Bidya Devi Bhandari on recommendation of the Cabinet have demanded the record about discussion on House dissolution held in the Constituent Assembly (CA) be sought by the Supreme Court (SC).

Chief Justice (CJ) Cholendra Shumsher Rana said the issue has already been raised and the constitutional bench has noted that when senior advocate Dinesh Tripathi, one of the 13 petitioners, demanded so when continuous hearing started on Sunday.

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The CA had debated long about whether to grant the authority to dissolve the House to the prime minister (PM) before promulgating the Constitution. Many CA members had argued that such rights should not be granted to the PM pointing that PMs after restoration of democracy in 1990 repeatedly dissolved the House leading to political instability.

PMs had dissolved the House elected after all three general elections held until the Janaandolan II in 2006. Girija Prasad Koirala, leading the majority government of Nepali Congress (NC), dissolved the House and announced mid-term election due to internal dispute in the ruling party.

Manmohan Adhikari, leading the minority CPN-UML government after the mid-term election, also dissolved the House after just nine months after a no-confidence motion was brought against him.

Sher Bahadur Deuba leading a majority NC government also dissolved the next House.

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The CA due to that experience ultimately decided to not grant the authority to the PM in the new Constitution promulgated in 2015. Notes and audio records of those discussions have been kept safe.

Advocates arguing on their behalf have also demanded that the bench should allot fixed time to both the sides pointing that the hearing will be unnecessarily stretched with dozens applying to argue during the hearing.

CJ Rana refused to set fixed time. “We don’t fix time frame in issues of such importance. You decide yourself what and how long you speak,” CJ Rana stated.

The SC on Friday decided that the petitions will be heard by the constitutional bench and not transferred to the extended full bench.

Eleven of the 13 petitioners in the case on January 1 had filed a supplementary application demanding that the case be heard by an extended full bench as the SC had done in previous cases related to House dissolution in the past. “It need not be done as demanded by the petitioners as the petitions include serious constitutional interpretation as per Article 137(3) of the Constitution of Nepal. Do as per the law,” the constitutional bench has ruled.

Continuous hearing on the petitions will now be done by the constitutional bench from Sunday.

Questions were also raised on Friday about difference in the remarks of the Cabinet while recommending dissolution of the House of Representatives (HoR) and the article of Constitution mentioned by President Bidya Devi Bhandari while endorsing the recommendation.

Senior advocate Raman Shrestha raised the question while arguing before the constitutional bench of the Supreme Court (SC) on behalf of petitioner Dev Gurung on Friday.

He pointed that President Bhandari mentioned Article 76(7) of the Constitution while endorsing the recommendation even as the Cabinet while recommending dissolution had stated that a government of two-third majority is necessary for amendment of Constitution and the HoR needs to be dissolved to form such government. “Can the president in this way mention an article not mentioned by the Cabinet while endorsing the recommendation?” Shrestha asked.

He also raised question about the government taking back the documents about House dissolution it submitted to the SC. The government on January 8 had taken back the documents it submitted to the SC five days earlier.

Even justices in the five-strong constitutional bench expressed surprise at that but Chief Justice (CJ) Cholendra Shumsher Rana quipped the file was submitted with conditions to take it back and the administration apparently returned it back, as it was needed for Cabinet meeting, demanding it be produced again when needed.

“It was taken saying it will be returned on January 13. But it has not been brought yet. That file is an important evidence in this case. They can tamper with it. Let that be sealed,” Shrestha demanded.

The SC, however, has kept a Xerox copy of the file.

The SC continued hearing of the writ petitions on Friday. The five-strong constitutional bench headed by Chief Justice (CJ) Cholendra Shumsher Rana had heard arguments about whether to send the case to the extended full bench from both sides on Wednesday but did not take a call on it and decided to continue the hearing on Friday.

CJ Rana earlier on Wednesday included Justice Sapana Pradhan Malla in the the constitutional bench in place of Justice Hari Krishna Karki who recused himself from the case

Justice Karki, who was attorney general when KP Sharma Oli first became prime minister five years ago, recused himself from the case on January 6 after advocates raised questions about his presence in the bench.

Chief Justice (CJ) Cholendra Shumsher Rana on December 25 had constituted the constitutional bench comprising himself and Justices Hari Krishna Karki, Bishwambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC. The same bench started continuous hearing about the case of House dissolution from January 6.

CJ Rana has replaced Karki with Malla who was elected to the First Constituent Assembly by the then CPN-UML before she was appointed to the SC.

The bench after the last hearing on December 25 had ordered the government and other defendants to submit written justification via the Office of the Attorney General before January 3.

The defendants including Prime Minister KP Sharma Oli have already submitted written response to the show-cause order issued by the constitutional bench hearing the 13 writ petitions against House dissolution by President Bidya Devi Bhandari on recommendation of PM Oli on December 20. Each defendant has sent separate replies to all 13 petitioners through the Office of the Attorney General.

PM Oli has said he dissolved the House as a few leaders tried to undermine the government. Claiming that there was no chance of formation of another government, he has argued that House dissolution is a political issue and claimed that the court in the past also did not enter into political issues.

The response sent by the President’s Office has also claimed that the House has been dissolved in accordance to the Constitution, precedents of the past and international practices.

Speaker Agni Sapkota, on the other hand, has claimed in his reply that there was option of forming another government and pointed there is a clear provision that prohibits House dissolution until there is chance of forming government. He has stated that the House dissolution is against the spirit and values of the Constitution and called it an intervention on the institution of people’s elected representatives.

Similarly, recommendation for HoR dissolution and original copy of decision on it were also sought from the President’s Office, and Office of the Prime Minister and Council of Ministers by the SC on December 25. The original documents on registration of no-confidence motion were sought from the federal parliament secretariat.

The documents about name and number of lawmakers in the House just before its dissolution were also sought from the federal parliament secretariat. The SC had also asked for three senior advocates of Nepal Bar Association and two from the SC Bar in amicus curiae which has already been provided to assist the Apex Court.

A total of 13 writ petitions were filed against HoR dissolution by President Bidya Devi Bhandari on recommendation of Prime Minister KP Sharma Oli on December 20.

Advocate Prabesh KC had filed a writ petition against HoR dissolution on behalf of members of the dissolved House Dev Prasad Gurung, Krishna Bhakta Pokharel, Sashi Shrestha and Ram Kumari Jhankri. In the petition, he had demanded the recommendation be scrapped, arguing it violated House’s right to continue for five years.

The Constitution does not have clear provision about House dissolution. Article 85(1) of the Constitution states ‘Except when dissolved earlier, the term of House of Representatives shall be five years.’

Some constitutional experts argue that the Constitution envisions House dissolution due to the use of term ‘dissolved earlier’. But others argue that the provision has been kept for the situation of inability to choose the PM.

Article 76(7) states ‘If the Prime Minister appointed according to clause (5) fails to get the vote of confidence or if any member fails to be appointed as Prime Minister, the President shall, on the recommendation of Prime Minister, dissolve the House of Representatives and fix a date to conduct another election within six months.’

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