Nepali Times
From The Nepali Press
Legalese



Presently, everybody's attention is on the writ filed against Prime Minister Sher Bahadur Deuba's decision to dissolve parliament. Lawyers representing the petitioners and the government have already presented their arguments. Now the representations of the speakers and the amicus curiae remain, and are expected to be completed by next week.

This is the third time that the decision of a prime minister to dissolve parliament has been challenged in court. In the earlier cases, the court supported the dissolution of the House as recommended by Girija Prasad Koirala in 1994, and rejected it, reinstating parliament when minority prime minister Man Mohan Adhikari recommended the dissolution of the House and mid-term polls a year later in 1995.

The court's decision on the present writ will probably be returned around the third week of July. After filing the writ, the petitioners asked that the clauses they had initially included questioning the role of His Majesty in the dissolution of the House be removed. The writ demanding the reinstatement of the House was prepared by senior lawyer Mukunda Regmi, and it is said that the petitioners consulted former chief justice Biswo Nath Upadhaya before formally filing it.

A special 11-member bench headed by Chief Justice Keshav Prasad Upadhaya is hearing the writ. Also on the bench are Kedar Nath Upadhaya, Krishna Jung Rayamajhi, Gobinda Bahadur Shrestha, Arbinda Nath Acharya, Hari Prasad Sharma, Krishna Kumar Barma, Harishchandra Prasad Upadhaya, Top Bahadur Singh, Dilip Kumar Paudel and Narayan Prasad Khatri. The Chief Justice, Kedar Nath Upadhaya, Krishna Jung Rayamajhi and Gobinda Kumar Shrestha were also the members of the special bench that heard the writ filed against Koirala's decision to dissolve the House in 1994.

Koirala was a majority prime minister and the petitioners had alleged that his decision to dissolve the house was "ill intentioned". He was also accused of political misconduct, due to his controversial involvement in the infamous RNAC scandal and the Tanakpur treaty. The court decided in favour of Koirala, saying that the charge of "ill intention" needed to be substantiated by concrete evidence.

In the former case, the petitioners had claimed that the prime minister who had resigned from his post did not have an authority to recommend a house dissolution, while in the present case the petitioners have pointed out that elections are impossible during state of emergency. Formerly, the court had said that "resigning from a prime minister's post and recommending a house dissolution were separate matters and it was a prerogative of the prime minister to recommend to dissolve the house under the article 53(4) of the Constitution."

Justices Mohan Prasad Sharma, Krishna Jung Rayamajhi and Gobinda Bahadur Shrestha concurred in their respective arguments in the Koirala case that "the right to dissolve parliament rested only with a prime minister and even the Monarch was denied that right without a recommendation from a prime minister. It cannot be claimed that a prime minister will recommend the dissolution of the House only to influence the people's opinion about a government's policy and programmes. But he might recommend a dissolution if he feels it is essential; considering a political situation of the country, it can also be an attempt to garner a fresh people's mandate. These are political issues where a court decision is not needed."

Similarly, Keshav Prasad Upadhaya and Laxman Prasad Aryal had argued against the majority opinion that resigning from the post of prime minister and recommending the dissolution of the House could not go simultaneously, but both of them, along with Justice Kedar Prasad Upadhaya, concurred that it was prime minister's prerogative to recommend a dissolution. The present case is different from Koirala's case-here the prime Minister has recommended that the House be dissolved without resigning from his post.

The Supreme Court's decision [on the current writ] remains a matter for speculation. However, there is no doubt that the prime minister's recommendation is constitutional.

It is not the court's responsibility to decide whether or not elections are possible, and there is no law that prevents the dissolution of the House during a state of emergency. There is a constitutional provision that the term of parliament can be extended by a year in case it is imposible to hold general elections and a state of emergency has been imposed. But it is not mandatory that the term of parliament be extended, and neither does the Constitution require that a general election not be held.


LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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