With the ending of grueling court deliberations, the Constitutional Bench is expected to deliver its verdict on July 12. Compared to the earlier case on House dissolution, the on-going case is far more complex and complicated. Even the four amicus curiae invited to have their impartial, independent and professional views came up with a divided opinion—two supporting and remaining two opposing House dissolution.
In the last case on House dissolution, legal deliberations revolved around the constitutionality of the PM’s decision: Whether a PM with a clear majority can or cannot dissolve the House. Nearly after two months of court deliberations, the court overturned the Prime Minister’s decision and gave its verdict stating that as long as there exists an option to form another government in the House, the Prime Minister cannot dissolve it.
The Constitutional Bench is expected to deliver its verdict on July 12 following the conclusion of arduous court deliberations. The current case is far more complex and complicated than the previous case on House dissolution. Even the four amicus curiae who were invited to provide their impartial, independent, and professional opinions were divided, with two supporting and the remaining two opposing House dissolution.
In the previous case on House dissolution, legal arguments focused on the constitutionality of the Prime Minister’s decision: whether a Prime Minister with a clear majority can or cannot dissolve the House. After nearly two months of deliberation, the court overturned the Prime Minister’s decision and issued its verdict, stating that the Prime Minister cannot dissolve the government as long as there is an option to form another government in the House.
However, the centrality of the debate this time revolved around the process leading to the House’s dissolution. Can a prime minister recommend dissolving the House if he has not resigned or secured a confidence vote in the House? To be more specific, can a government formed under Article 76(2) that was unable to secure confidence voting under Article 76(4), and then transformed into a government under Article 76(3), decline to secure confidence voting, pave the way for the formation of a government under Article 76(5)? And, if the President invalidates the application for formation of a government under Article 76(5), can the Prime Minister recommend dissolving the House?
On the surface, it appears that the centrality of the court battle revolved around the PM’s decision. In reality, the focus is very much on the constitutionality of the President’s power. The President is “hand in glove” with the Prime Minister, either by design or by default. The Bench must answer the following question: Under Article 76(5), does the President have discretion to invalidate applications or not appoint the Prime Minister?
Aside from that, the judges must address the pandemic situation in their decision. They previously discussed the “financial burden of elections on the general public.” Clearly, the pandemic situation is more concerning than the financial constraints in holding elections. What if the court upholds the PM’s decision, but the elections cannot be held on time due to the pandemic? We are effectively in a political vacuum. In the absence of elections, the President and her men’s tenure may be extended for a while, but the political fallout may be severe and long-lasting.
Listening to the defendant lawyers, it appears that they are more concerned with saving the President’s chair than the Prime Minister’s. They are vehemently arguing that Article 76(5) gives the President discretionary power that cannot be challenged in a court of law. If we have envisioned a ceremonial President in the Constitution, the verdict will have far-reaching implications for the constitutional interpretation of the President’s roles, responsibilities, and power. In response to the Bench’s show-cause notice, even Prime Minister Oli defended the President’s actions, claiming that the onus is on him, not the President. During a public meeting, he did not hold back in criticizing his opponents, saying, “There is a kind of competition going around to defame the President.” Meanwhile, the President’s advisors are publicly defending her position. There’s even a veiled threat: What if the President refuses to obey the court’s order?
However, the plaintiffs’ lawyers have not shied away from suggesting an impeachment motion against the President. It’s easy to see how we got ourselves into this mess.
What if the court endorses the PM’s decision and due to a pandemic situation the elections cannot be held on schedule? In the absence of the elections, the tenure of the President and her men may be extended for a while but political fallouts may be serious.
Essentially, the Madam President is being squeezed from both ends. First, she backed a PM’s recommendation to dissolve the House, despite the fact that he had neither secured mandatory confidence votes in the House nor resigned from his position. He simply paved the way for the formation of a new government under Article 76. (5). Second, citing overlapping claims by 38 MPs, she invalidated application calls for the appointment of the Prime Minister under Article 76(5). The rejection of the applications raised a number of concerns. They range from “identification of the grounds for invalidation” to “the President discriminating against MPs based on party affiliations” to “appropriate venue for verifying MP signatures.” It is not simply the result of the President’s actions, namely, his unequivocal support for the Prime Minister’s decision to dissolve parliament and invalidate applications. Questions were also raised about the manner in which she made her decision, namely, in haste and in the middle of the night, without consulting the Speaker or the major political parties in opposition.
Bidya Devi Bhandari, the first female president of Nepal’s federal democratic republic, has been dragged into controversy after controversy, beginning with her lavish lifestyle to becoming a mere “rubber stamp” of the PM and Oli faction of the CPN-UML. It’s one thing to blame patriarchy; it’s quite another to cultivate female leadership. Nepal has had a female President, a female Chief Justice, a female Speaker, and even female business leaders in the post-republic era. The question is, how have we fared under their direction? I’ll leave the answer to the readers.