Supreme Court puts Nepal politics back on track

The Constitutional Bench of Nepal’s Supreme Court ruled on Tuesday that a prime minister with a majority in Parliament did not have the authority to dissolve it, ending two months of speculation about whether it would back Prime Minister
K P Oli’s dissolution of the Lower House. 

The five-member Constitutional Bench also ruled that Parliament be restored by 8 March, thus moving the focus of attention back to the legislature where there could be a struggle to form the next government and find a prime minister since the ruling party is now as good as split.

Foreign Minister Pradeep Gyawali and Oli loyalist has said his faction of the party would honour the Court verdict because it believed in the Constitution and the rule of law.

Analysts have welcomed the Bench’s decision, saying it sets a precedent for the future, and also firmly established the separation of powers and the independence of the judiciary despite attempts by political factions to try to influence it.

Both factions of the ruling Nepal Communist Party (NCP) had argued that the other side had leaned on the Supreme Court justices to make a ruling in its favour, with dire warnings about unleashing street unrest.

Indeed, the verdict read out by Chief Justice Cholendra SJB Rana spelt out clearly why Oli’s step was unconstitutional. It said: ‘Prime Minister Oli’s recommendation to dissolve the House and its assent by the President lacked legal backing and went against the spirit, principles and values of the Constitution ... the decision is overturned.”

The 15-page decision now reinstates the Lower House to its previous state. The verdict states: ‘The House will now be restored to its status quo before the unconstitutional dissolution because it is capable and empowered to do so.’

Although the Constitution requires that a House session be called within six months of the dissolution of Parliament, the Supreme Court has directed the President’s Office, the Prime Minister’s Office and prime minister, Speaker Agni Sapkota to reconvene the House within 13 days. 

The decision has over-ruled the argument by the government’s lawyers that since the House dissolution was a political matter between factions of the ruling party, it did not need the intervention of the judiciary. 

It has also removed the need for an expensive snap election. With the dissolution of the House on 20 December, Prime Minister Oli had also called for early elections in April and May. The Election Commission had also started preparations for the polls. Elections will now be held as scheduled in 2022.

The Supreme Court decision now sets a precedent that it is the responsibility of the judiciary to have a say in matters that deal with constitutional matters, especially its provisions and interpretation. 

It said: ‘If the boundaries laid by the Constitution have been crossed, and this Court is not allowed to rule on it because it is deemed to be political, then it will not have fulfilled its responsibility granted by the very Constitution.” 

In fact, the justices ruled that a precedent had been set by previous Supreme Court rulings based on the 1991 Constitution in which it had said that earlier dissolutions of the House were a constitutional matter within the jurisdiction of the apex court. It said such matters of constitutional importance could not be brushed aside because they are deemed to be ‘political’ in nature. 

Prime Minister Oli himself had submitted a written justification to the Court arguing that it was within the prerogative of the head of government to dissolve the House, as in other parliamentary democracies. The Bench argued that Nepal’s federal democratic Constitution was different from other parliamentary democracies, and the prime minister did not have the authority under the Constitution to dissolve the House.

‘The Constitution clearly lays out the conditions under which the House can be dissolved, and it does not allow dissolution based on someone’s personal whims or fancy, or when there are other alternatives for government formation to have expensive elections that would burden the people,’ the verdict further notes. 

There were 13 writ petitions against the Prime Minister’s move, and they accused him of dissolving the House with ill intent. However, the Court said it did not see the need to decide on the prime minister’s motive at the present time.

Meanwhile, Pushpa Kamal Dahal who leads the faction opposed to Oli said he would now start talking with the smaller parties to try to establish a majority in Parliament. He said he would not make a bid for prime ministership, but admitted that if the other parties wanted he would be willing to take the job. 

Dahal and his loyalists have ruled out reuniting with the Oli faction, saying there is now there is too much bad blood between the two. This leaves the possibility of the Dahal faction allying with the opposition Nepali Congress and smaller parties to form the next government.