Friday, April 26, 2024
Er. Dipendra Kandel
1. Introduction
This past December the 20th, Nepal’s president Bidya Devi Bhandari dissolved Nepal’s House of Representatives, following Prime Minister KP Sharma Oli’s advice (as the regular procedure lays down). While this new came initially as a shock for Nepalese society and the world, it is no surprise that relations within the ruling Nepal Communist Party are shaped by the dissenting visions between the Unified Marxist-Leninist faction (led by K P Sharma Oli) and the Maoist faction (led by former premier Pushpa Kamal Dahal).
Both parties merged in 2017, achieving a convincing victory in Nepal’s last general elections and gearing the largest communist party in South Asia (174 out of the 275 parliament seats). However, the coalition soon descended into power tussle dynamics that have been going on for almost the entirety of Oli’s term.
As a consequence, and in order to avoid further government inability to effectively rule the country due to political differences within the executive, KP Sharma Oli decided to recommend the dismissal of the parliament, regardless of the fact that he currently holds an almost 2/3 majority in the legislative (an outstanding majority unlikely to occur following the split of both communist parties).
As a response, president Bidya Devi Bhandari dismissed the parliament, appealing to its legality through National and International Practices and the use of articles 76.7 and 85 of the constitution.
This government crisis has had and will have a deep impact in Nepal politics, as it is foreseen that between April and May the South Asian country will undergo general elections.
2. The Right Honorable President of Nepal’s views
The Office of the President said in a notice that President Bidya Devi Bhandari approved the recommendation, pursuant to: (1) Nepal’s Constitution Article 76.1, (2) Nepal’s Constitution Article 76.7, (3) Nepal’s Constitution Article 85, (4) Common Law practices of the Westminster system, (5) Nepal’s Legal Precedents, and (6) International Practices by other States within the Westminster Legal System.
Please find below the mentioned constitutional articles, since we will be using them further down the article:
76. Constitution of Council of Ministers:
(1) The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.
(7) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
85. Term of House of Representatives:
(1) Unless dissolved earlier pursuant to this Constitution, the term of the House of Representatives shall be five years.
(2) Notwithstanding anything contained in clause (1), the term of the House of Representatives may be extended by a Federal Act for a period not exceeding one year in cases where a proclamation or order of a state of emergency is in effect.
(3) The term of the House of Representatives extended under clause (2) shall ipso facto expire upon the expiry of six months from the date of voidance of the proclamation or order of the state of emergency.
3. The case: Parliament Dissolution Critics
Soon after the dissolution of the parliament, Pushpa Kamal Dahal & Madhav Kumar Nepal (chairmans within the Comunist Party), a big faction of the Nepali Congress, and other parties across the opposition, started approaching the Constitutional Court to assess whether the move was unconstitutional.
This initiative gained support amongst some mainstream media channels, a part of Nepali civil society, and even some lawyers (including the former executive chief justice, who recently joined the movement). Up to this point, eleven petitions challenging the dissolution of Nepal’s Federal Parliament have been filed in the Supreme Court of Nepal. The petitions challenge Nepal’s Prime Minister KP Sharma Oli’s request to President Bidhya Devi Bhandari to dissolve Parliament.
The Supreme Court is expected to decide on the legality of the dissolution of Parliament soon.
The main arguments put forward by parliament dissolution critics are the following:
1. The parliament, as the main legislative body of Nepal, cannot be dissolved.
2. The parliament cannot be dissolved unless it finishes its five years term.
3. The parliament cannot be dissolved if the government holds a parliamentary majority.
4. While some parliament dissolution provisions were provided in the previous 1990 Constitution, these were taken out in the current 2015 constitution.
5. The Prime Minister cannot recommend such parliament dissolution.
6. The Prime Minister needs to go through a negative vote of confidence to dissolve the parliament, as article 100 of the constitution states.
7. The Prime Minister needs to fall under Article 76.5 of Nepal’s Constitution in order to dissolve the parliament.
8. Oli’s government was formed under the Article 76.2 of Nepal’s Constitution, not under 76.1.
9. The president has exceeded her power limits by dissolving the parliament.
10. The president does not have executive power to rule outside of the constitution.
11. President’s usage of national and international practices is not related to the parliament dissolution
4. The case: My opinion
As a public innovator -of- Nepal, I have been struggling over the past 4 years to empower Nepal society and government through the provision of political, economic, and social policies, enforced through my Public Innovation office and my think tank: Dipendra Kandel Initiative.
Thus, as a relevant figure in Nepal politics, it is not only my role, but also my responsibility to share my views with Nepal and with the world, being my sole goal to obtain clarification and pursue Rule of Law.
In order to tackle the unconstitutionality claims, I conducted an extensive research of Nepal’s Constitution, as well as national and international precedents, with my Political Office, and we came to the following conclusions in response to the critics:
1. Even if the constitution only implicitly specifies a single case, the parliament dissolution is indeed contemplated in the legal text (76.7 & 85.1), thus the parliament can be dissolved according to Nepal’s constitution.
In fact, we are in front of a case of alegality, since the constitution does not specifically proclaim itself with regards to the current specific situation Nepal is living.
2. There is not a single article in the constitution that implicitly or explicitly forbids the parliament dissolution prior to the end of its 5-year term, thus, I refer back to the concept of alegality, which is clearly showcased in this legal entangle.
3. As it occurs with point number 2, the constitution does not mention whether the parliament can or cannot be dissolved if it holds a legislative majority. Therefore, it is impossible to say that should that condition be in place, we would be in front of an illegal parliament dissolution.
4. Since not many people has access to Nepal’s 1990 Constitution, some sections within the opposition movement have adopted the discuss that while 1990’s constitution had provisions for parliament dissolution (As we will see further down the article, a Constitutional Court resolution backing parliament dissolution was passed within that constitutional framework), the current constitution does not have such provisions.
In this sense, let’s compare what are the differences between 1990’s Constitution and 2015’s Constitution regarding parliament dissolution:
(1990) Article 36: Constitution of Council of Ministers
(1) His Majesty shall appoint the leader of the party which commands a majority in the House of Representatives as the Prime Minister, and shall constitute the Council of Ministers under his chairmanship.
(2015) 76. Constitution of Council of Ministers:
(1) The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.
(1990) Article 42: Special Provisions Concerning the Council of Ministers
(2) If a Council of Ministers appointed pursuant to the provisions of clause (2) above fails to obtain a vote of confidence from the House of Representatives, His Majesty shall dissolve the House of Representatives and issue an order for holding elections within six months.
(2015) 76. Constitution of Council of Ministers:
(6) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
Unlike some say, 1990’s Constitution and 2015’s Constitution are highly similar, with one slight difference: The change of terminology - In 1990’s Constitution His Majesty is referred as the Head of State, whereas in 2015’s Constitution that role is in the hands of the President
Therefore, this argument is completely false, 1990’s and 2015’s Constitutions are, if anything, extremely similar. Even more, perhaps the current Constitution might even back the current parliament dissolution more so than the previous did (since more provisions are given).
5. The Prime Minister has the right and power to recommend a parliament dissolution to the president, according to article 76.7.
In addition, to further justify this argument, and referring back to point 4, the previous constitution claimed the following:
(1990) Article 42: Special Provisions Concerning the Council of Ministers
(4) If a Council of Ministers appointed pursuant to the provisions of clause (2) above fails to obtain a vote of confidence from the House of Representatives, His Majesty shall dissolve the House of Representatives and issue an order for holding elections within six months.
(2015) 76. Constitution of Council of Ministers:
(7) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
In this case we can clearly see how “...on recommendation of the Prime Minister…” was added in the new constitution, making it even more obvious that the claims that PM has no right to recommend parliament dissolution are misleading.
6. Some claim that the constitution (article 100) specifies that the Prime Minister needs to fail a vote of confidence in order to dissolve the parliament. However, the constitution says that such a vote of confidence shall occur when the two parties constituting a government split, which is not the case, as both the Marxist-Leninist and Maoist party formed a single party to run-up for the elections, rather than a coalition (and the electoral commission forbids the constitution of political parties that are a subdivision of another political party prior to the next elections)
100. Provisions relating to vote of confidence and motion of no-confidence:
(1) The Prime Minister may, whenever he or she considers necessary or appropriate to show that he or she has confidence from the House of Representatives, table a motion to that effect i the House of Representatives for the vote of confidence.
(2) If the political party which the Prime Minister represents is divided or a political party in coalition government withdraws its support, the Prime Minister shall table a motion in the House of Representatives for a vote of confidence within thirty days.
(3) If a motion tabled under clauses (1) and (2) is not passed by a majority of the total number of the then members of the House of Representatives, the Prime Minister shall relieve of his or her office.
Needless to say, 100 (1), (2), (3), which have a set of subsequent points, do not apply, since 100 (1) is up to PM consideration, (2) does not apply, because the political divisions exist within a unified single political party (not a coalition government/party) and 100 (3) does not proceed since neither 100(1) nor 100(2) apply.
7. Article 76.7 of Nepal’s current constitution specifies that Prime Minister can dissolve the parliament when he or she fails to obtain a vote of confidence under clause (5) - Which would entail that KP Sharma Oli had no majority and could not resort to any coalition as to form a government, which is not the case.
76. Constitution of Council of Ministers:
(5) In cases where the Prime Minister appointed under clause (3) fails to obtain a vote of confidence under clause (4) and any member under clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.
However, everybody is omitting that Article 76.7 says “...or the Prime Minister cannot be appointed…” A phrase that was added to the article’s predecessor in 1990’s Constitution, Article 42.2, which gives even more grounds to believe that the specification allows for parliament dissolution in this case.
And this is exactly the case where we find ourselves in, since should KP Sharma Oli resign, there is no other parliamentary alternative to form a government.
Thus, 76.7 says that parliament can be dissolved when the president fails to obtain a vote of confidence under clause 5 (not the case) OR cannot be appointed (current case).
8. KP Sharma Oli’s party, CPN-UML, became the largest party when it secured 121 seats out of the 275 member parliament after the last elections in Nepal. On February 15, 2018, KP Sharma Oli was appointed as the Prime Minister of Nepal for the second time by president Bhandari as per the clause 76.2 of Nepal’s Constitution (being his party the largest).
76. Constitution of Council of Ministers:
(2) In cases where no party has a clear majority in the House of Representatives under clause (1), the President shall appoint as the Prime Minister a member of the House of Representatives who can command a majority with the support of two or more parties representing to the House of Representatives.
Indeed, KP Sharma Oli had to go through a motion of confidence, which he passed with 208 out of the 275 votes in the parliament.
Up until this point, Oli was appointed under 76.2. Therefore, he would have to go through 76.5 in order to be able to dissolve the parliament, as mentioned in the previous point.
Nonetheless, on 17 May 2018, his party and the Maoist Centre merged to form the Nepal Communist Party (NCP), which has a hold of 174 out of the 275 seats in parliament.
On 28 May 2018, the Federal Socialist Forum, Nepal, joined the government. However, this party (which was later merged into the Samajwadi Party Nepal on 6 May 2018) left the government on 24 December 2019. From that date the NCP has been and is the only party leading the government with an absolute majority.
This implies that the NCP has an absolute majority as a single party, and that KP Sharma Oli is currently in charge under the Article 76.1 of Nepal’s Constitution, rather than 76.2 (with all the consequences this entails).
To further make this point evident, Nepal’s election commission act, 2063 claims that the government party cannot divide itself post-elections to form a different coalition. What means that the NCP is a single political unit with a parliamentary majority:
26. Decision by Commission:
(1) If two or more groups with at least forty percent members of Central Executive Committee related to the political party registered with the Commission, make an application to the Commission for having recognition pursuant to this Act, claiming the name, constitution, election symbol or flag of that political party, the Commission shall settle such dispute.
Provided that, the commission shall not entertain such application received after the declaration of the election date.
9. The president has not crossed her constitutional limits, since the constitution clearly specifies that it has to be the president the one who dissolves the parliament (76.7).
In addition, we can refer back to point 5, where we saw how 2015’s constitution changed the terminology of 1990’s constitution from His Majesty to The President and specifies how the President, on recommendation of the PM has to be the one dissolving parliament.
10. After doing extensive research of Nepal’s constitution, I have come across with article 66. Such article might provide the president with the executive power needed to make the parliament dissolution legal and rightful.
As seen below in the article 66, in the cases when something falls out of the constitutional reach, the president has the right to enforce decisions through federal law if it has the consent of the Council of Ministers.
This article would imply that, since the conditions under which the current parliament dissolution has occurred are not specified in the constitution, the president made a proper use of article 66 by legislating through a Council of Ministers recommendation.
66. Functions, duties and powers of President:
(1) The President shall exercise such powers and perform such duties as conferred to him or her pursuant to this Constitution or a Federal law.
(2) In exercising the powers or duties under clause (1), the President shall perform all other functions to be performed by him or her on recommendation and with the consent of the Council of Ministers than those functions specifically provided to be performed on recommendation of anybody or official under this Constitution or Federal Law. Such recommendation and consent shall be submitted through the Prime Minister.
(3) Any decision or order to be issued in the name of the President under clause (2) and other instrument of authorization pertaining thereto shall be authenticated as provided for in the Federal law.
11. As part of the Westminster System, Nepal’s Common Law gives room for legal precedents, whether they are national or international. And in this case we have examples on both to support Oli’s parliament dissolution:
11.1 National Precedents
For those not familiar with Nepal’s political history, many parliament dissolutions have taken place over the years. In this case, I will focus on two examples that indicate that there are legal precedents that would make the current parliament dissolution legal.
11.1.1 Koirala’s dissolution
First of all, PM Girija Prasad Koirala (who was elected in the first multiparty democratic elections in Nepal, which occurred in 1991) dissolved the parliament in 1994 after continuous fraying of relationship between his government members, despite of the fact that his term was not over and that his party held a 110 out of 205 seats majority.
In the aftermath of the dissolution, the case was as well taken to the constitutional court under the claim that such move was unconstitutional. However, the Constitutional Tribunal ruled that since there was no possibility of the formation of another government, there was no alternative to seeking a fresh mandate from the people which Koirala had recommended.
In such occasion, the 1990 constitution ruled the following regarding parliament dissolution:
Article 42: Special Provisions Concerning the Council of Ministers
(1) If no one party has a clear-majority in the House of Representatives, His Majesty shall appoint as Prime Minister a member who is able to command a majority with the support of two or more parties represented in the House.
(2) If no member is able to command a majority in the House of Representatives even pursuant to clause (1) above, His Majesty shall appoint as Prime Minister the leader of the parliamentary party that holds the largest number of seats in the House of Representatives.
(3) A Prime Minister appointed pursuant to clause (1) or (2) above shall be required to obtain a vote of confidence from the House of Representatives within thirty days.
(4) If a Council of Ministers appointed pursuant to the provisions of clause (2) above fails to obtain a vote of confidence from the House of Representatives, His Majesty shall dissolve the House of Representatives and issue an order for holding elections within six months.
Which, in fact, does not sway much from the current constitution (article 76 of Nepal’s current constitution).
Nowadays we find ourselves in front of a very similar occasion, since the parliament dissolution was ahead of normal term, the government holds a majority, and the opposition cannot form a government (In this sense, it is very important outlining that according to Nepal’s election commission act, 2063, the government party cannot divide itself post-elections as to form a different coalition).
Therefore, based on the grounds that a constitutional tribunal favorable decision was taken under similar circumstances in 1994, we can say that there is indeed a legal precedent in Nepal’s legal history, which would imply that the parliament dissolution was indeed legal.
11.1.2 Adhikari’s Dissolution:
After the subsequent elections in 1994, Manmohan Adhikari articulated a coalition which passed a confidence vote in order to become Prime Minister with a minority government.
On such occasion, Adhikari also recommended a parliament dissolution due to political instability. However, the Constitutional Court ruled against the dissolution since it did not hold strong political and constitutional ground because chances of forming the next government were still there and a no-confidence motion had already been tabled in the House which needed to be discussed.
This case exemplifies how whenever there is a possibility to form another government through different coalition articulation, a parliament dissolution is unconstitutional (Nowadays we do not find ourselves in front of this case since as we mentioned in point 11.1.1 and before, Oli’s party holds an absolute majority in the parliament and there is no other political alternative to form a government).
11.1.3 Sher Bahadur Deuba Dissolution:
The 3rd example of parliament dissolution we come across with in this article was featured by current Nepali Congress leader Sher bahadur Deuba.
In such occasion, after the alleged instigation by King Gyanendra, Deuba dissolved the parliament in 2002, justifying his actions under the extraordinary context of armed conflict Nepal found itself ravaged by (led by Oli’s current nemesis in his party Pushpa Kamal Dahal).
After he failed to hold the elections, then king Gyanendra Shah dismissed Deuba in October, 2002 branding him as “incompetent”.
11.1.4 Baburam Bhattari’s Dissolution
On another occasion, a Constituent Assembly was formed following the devastating 2015 earthquake in order to produce a constitution.
The first Constituent Assembly failed to draft a constitution within deadline due to political disagreements, and after a 4-years extension, the Supreme Court of Nepal ruled the Interim Constitution extension illegal, since the Constituent Assembly term was extended beyond the Constitutional specifications:
64. Term of Constituent Assembly (Interim Constitution 2007):
Unless dissolved earlier pursuant to a resolution passed by the Constituent Assembly, the term of the Constituent Assembly shall be two years after the date on which the first meeting of the Constituent Assembly is held.
Provided that if the making of constitution cannot be completed by the reason of the proclamation of as State of emergency in the country, the Constituent Assembly may, by a resolution to that effect, extend its term for an additional period not exceeding six months.”
Thus, following the failure to meet the last deadline on May 2012, acting PM Khil Raj Regmi (appointed by the previous Prime Minister Baburam Bhattari after the end of his term) recommended the dissolution of the parliament (regardless of the fact that he enjoyed a parliamentary majority, besides, his extraordinary term was not over) with success.
In that occasion, there was no political turmoil or criticism at all with regards to the special conditions the parliament dissolution in 2012 occurred.
Therefore, since the current parliament dissolution shares common features with the 2012 parliament dissolution, there is further evidence that, based under common law practices of precedents, we are in front of a legal parliament dissolution.
11.2 International Practices
Should the previous constitutional analysis fall short for some legal interpretations, we have grounds to believe that the international legal framework also supports the parliament dissolution:
Nepalese legal system falls within the reach of British common law, and our constitution is Westminster-based, which allows for greater legal interpretation and basing legal decisions on previous similar experiences.
In this sense, while the procedure respected Britain’s constitution, Boris Johnson starred the last United Kingdom’s parliament dissolution, which was performed ahead of its normal tenure and holding a parliamentary majority.
Therefore, international experiences might indicate that the parliament dissolution is, if not legal, at least not illegal.
5.0 Conclusions
In this article, I explore the constitutional, international experiences, and national precedents that have led me to strongly believe that the parliament dissolution that occurred in Nepal on December the 20th, 2020, was not unconstitutional nor illegal, as many actors in the country say.
It is vital to be critical and perform extensive research before claiming misleading conclusions, as in this case, political tensions in Nepal have rocketed due to the unconstitutionality claims by some actors in Nepal.
I believe that the following elections Nepal will undergo are an opportunity for democracy and for reform, as the country needs more than ever a long period of stability in order to properly pursue development and Rule of Law.
In this sense, I want to make sure that I welcome the brave decision taken by Prime Minister KP Sharma Oli of dissolving the parliament despite the fact that he enjoyed a legislative majority, and his tenure was not over. Indeed, this decision constituted a lesson of democracy and putting national interests before political and partisan interests.
