The constitution of Nepal is the supreme law of the country and according to this constitution KP Sharma Oli has been appointed as the Prime Minister from the House of Representatives and Vidhyadevi Bhandari has also been appointed as the President.
Since both of them have repeatedly dissolved the House of Representatives against the constitution law of the country, they do not seem to have the general knowledge that the constitution must be followed. In both, there is a desire to violate the constitution and to become a dictator. If people in high positions like the President and the Prime Minister are not punished for repeatedly violating the constitution, this step will be repeated and there is a strong possibility that democracy will be endangered.
The House of Representatives, which was dissolved by President Bidyadevi Bhandari on the recommendation of Prime Minister KP Sharma Oli, was re-established by a decision of the Constitutional Court of the Supreme Court on March 25.
It is unconstitutional for President Bhandari to dissolve the parliament again and declare the election at midnight on the recommendation of the Prime Minister, contrary to the decision of the Constitutional Court of the Supreme Court, as the Parliament did not take any action against both the Prime Minister and the President. It is clear that this act is contrary to Articles 1,2,5,75,76,77,100 of the Constitution, including the preamble of the Constitution.
Respected Supreme Court should take action against both the Prime Minister and the President for disobeying the Constitution and the court’s decision. Both should be punished for contempt of court in order to prevent the Nepali people from sacrificing their lives for constitutionalism, rule of law, democracy, human rights, multi-party system, independent judiciary, and fundamental rights of the people.
According to Article 76 of the Constitution, the Parliament cannot be dissolved until all the options of forming a government are fulfilled. According to the decision of the Supreme Court, in order for the parliament to be dissolved, all the processes of forming the government should have been completed as per sub-sections 1, 2, 3, 4 and 5 of Article 76. However, it is clear that KP Oli, who was relieved of the post of Prime Minister in accordance with Article 76 (4) and Article 77 of the Constitution, has completely dissolved the House of Representatives by violating the above articles.
Considering the overall structure of Articles 1, 2, 3, 4 and 5 of Article 76 of the Constitution, one process after another is being implemented in the House of Representatives in a practical manner. According to Article 7, there seems to be a constitutional provision for the dissolution of the House of Representatives on the recommendation of the Prime Minister who is immediately appointed in accordance with Article 76 (5). Therefore, it is clear that KP Oli, who was relieved of the post of Prime Minister and did not have a vote of confidence from the House of Representatives, completely violated it and dissolved the House of Representatives in an unconstitutional manner.
In Article 85, Clause 1 of the Constitution, “Unless otherwise dissolved in accordance with this Constitution,” the Prime Minister shall not be appointed in accordance with Articles 1, 2, 3 and 5 of Article 76, or any other member of the House of Representatives shall be appointed Prime Minister. It is mentioned in the decision that there is a constitutional provision that the House of Representatives will be dissolved as per sub-section 7 of section 76 after the option is exhausted.
Prime Minister KP Sharma Oli is a minority prime minister appointed under Article 76, Sub-Article 3 of the Constitution. Oli said that the President has started the process of forming the government as per Article 5 without taking a vote of confidence as per Article 4. However, the process was not completed and President Bhandari dissolved the parliament on the recommendation of Prime Minister Oli. It is clear that the dissolution of the Parliament without completing the process as per Article 76 of Article 76 of the Constitution is contrary to the decision of the Supreme Court and Article 76 (5).
Oli, who is the prime minister under Article 76 (2) of the constitution, had announced a “sudden” vote of confidence in the House of Representatives. Oli, who resigned on April 11 after failing to get a vote of confidence from the House of Representatives, was appointed prime minister by a minority vote on April 12, according to Article 76, Clause 3 of the Constitution.
According to the constitution, he had one month to get a vote of confidence from the House. However, without seeking a vote of confidence from the parliament, Oli had recommended to President Vidyadevi Bhandari to start the process of forming the government as per Article 76 (5), saying that there was no basis for him to gain the confidence of the parliament within a week of his re-election. Which is completely unconstitutional.
Accepting Oli’s unconstitutional proposal without completing the process envisaged by the constitution, President Bhandari had given about 21 hours to the members of the House of Representatives to submit their demands to the Prime Minister in accordance with Article 76 (5) of the Constitution, which is unconstitutional.
According to Article 76, Clause 3 of the Constitution, the government had to go for a vote of confidence in accordance with Clause 4 within 30 days and if it did not get it, the President had to call for a proposal to form a government under Clause 5. It is completely unconstitutional for Bhandari to dissolve the parliament on the basis of the ‘request’ made by the Prime Minister without completing the process.
As the Prime Minister KP Oli has ‘self-declared’ that he is in the minority and does not even get a vote of confidence, it is not possible to claim for the post of Prime Minister even as per sub-section 5 of section 76 of the Constitution. Oli’s claim that he has the support of 153 lawmakers, including 121 from the CPN-UML and 32 from the Janata Samajwadi Party, is completely false and unconstitutional. Because 27 lawmakers from Oli’s party, 61 from the Nepali Congress, 48 from the CPN-Maoist Center, 13 from the Janata Samajwadi Party and 13 from the JSP have signed a proposal to make Sher Bahadur Deuba the prime minister, the president appointed Deuba as the prime minister and a representative for a vote of confidence under Article 76(4). The meeting had to be called.
Oli had gone to claim the names of the lawmakers with the signatures of the party president and the leader of the parliamentary party, while Deuba had taken the signatures of 149 lawmakers. However, President Bhandari along with Oli also rejected Deuba’s claim. After the president rejected both claims, Oli recommended dissolving parliament and setting a date for mid-term elections.
As per Oli’s recommendation, President Bhandari dissolved the parliament at midnight and called for mid-term elections. This act is clearly contrary to the interpretation of Article 76, Clause 5 of the Supreme Court in the previous dissolution controversy. In Chapter 3 of the judgment, the Supreme Court has clearly spoken about the formation of a government under sub-sections 1, 2, 3 and 5 of Article 76. According to these four articles, the Supreme Court has categorically stated that the Prime Minister can be dissolved only if he is not appointed or if the appointed Prime Minister fails to get a vote of confidence.
Explaining the brief decision, it is said that two prime ministers can dissolve the parliament. The Prime Minister who has been appointed as per sub-section 3 of section 76, but has been appointed as a caretaker prime minister after completing the process of section 76, and the prime minister who has been appointed under sub-section 5 but has not received a vote of confidence, can be dissolved under section 7. However, Prime Minister Oli does not appear to have met both the terms of the constitution and the Supreme Court’s interpretation.
Prime Minister Oli is not the Prime Minister who has completed the process of Article 4 after being appointed under Article 76, and the President has not made anyone the Prime Minister as per the procedure of Article 5. Therefore, it is clear that the process of dissolving this parliament is unconstitutional.
Therefore, without preparing the full text of the decision of the Constitutional Bench of the Supreme Court, on the recommendation of the Prime Minister, President Bhandari again dissolved the Parliament at midnight and declared elections, it all is clear that they have become unconstitutional contrary to the spirit and letter of the preamble of the constitution including 1,2,5,75,76,77,100 respectively.
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Advocate, Supreme Court of Nepal.
Kafle & Lawyers Associates
Trade Tower, Thapathali, Kathmandu, Nepal.
