Thursday, January 28, 2021

Dissolution of House of Representatives: A notional wrong and constitutional fallacy

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On 11 July 1994, King Birendra dissolved Nepal’s popularly elected House of Representatives in a shocking recommendation of Mr. Girija Prasad Koirala, the first elected Prime Minister under the Constitution of the Kingdom of Nepal, 1990. It was a mortifying act because it would foreseeably steal the democratic future of Nepal. The 1990 Constitution of Nepal had provided for the power to the PM, under Article 53 (4), to propose the king for the mid-term election through submitting a recommendation seeking the dissolution of the House of Representatives. PM Koirala’s act of dissolving the House was a politically unwise step. His act would lead to the breakdown of the foundation of the post-1990 multi-party democracy envisaged by, and designed under, the 1990 Constitution.

The 1990 Constitution had gained universal popularity at that time; the South African Constitution-making process particularly saw Nepal’s constitution as an inspirational model. In the Constituent Assembly of South Africa, the members and intellectuals echoed Nepal’s success of having a pragmatically designed constitution that had brought absolute monarchy within the constitutional purview. However, this constitution was brutally attacked by Koirala’s act of HR dissolution.

This act sparked the frustration and hopelessness of people towards the wisdom of the ruling party’s leaders. There are some intellectuals in the history of China echoing a saying, "unwise leaders may destroy the very fabric of the state's foundation by their power greed.' This saying proved true in Nepal. The act of House dissolution led the newly emerging democratic political process of Nepal to a 'state of chaos'. The popularly elected parliament became the victim of prime ministers' unethical and corrupt intentions of defiling democracy and destruction of Nepali people’s economic prosperity.’

The constitutional and democratic worthiness or legitimacy of Mr. Koirala's unwise political act to kill the 'House of Representatives' had widely been challenged by the Nepali people and the issue was brought to the Supreme Court’s consideration by some members, with the sincere aspiration for the restoration of the House but it proved otherwise. Through the petition for the judicial review of the act of dissolution, the lawyers involved in arguing the case on behalf of the petitioners and general people poured two series of logics in favor of democracy, constitutionalism, and prevention of power greed.

In the course, two basic principles or thrusts had been poured before the presiding eleven judges by lawyers from both sides in their arguments. The lead lawyers on behalf of petitioners echoed that 'the Prime Minister cannot punish the House for his incompetency to 'unite and consolidate his position within his political party.' The author, as one of the lead lawyers, voiced a concern that 'the House had been symbolic of ending the protracted authoritarian regime and as such represented a democratic institution to reflect democratic values and the Nepali people's collective aspiration for economic prosperity.'

It was deeply emphasized that the HR was not merely one of the organs of the state but a milestone to consolidate the fledgling democracy in Nepal.  The concern was voiced that the Prime Minister had acted indirectly for wrongly legitimizing his private political gain through eliminating the newly elected most popular-body in the post-autocratic regime. It was also argued that 'letting the house to fulfill its five-year term was the general rule of Constitutionalism and the mid-term elections is an exception to be invoked only during a situation of extreme political situation. The extreme political situation here refers to a situation in which the House is fully unable to 'offer the prospect of an alternative government.'

The 1994 situation was not like this because the House had fully been able to give a new government. It was not a failure of the ruling Congress Party, but a failure of the then Prime Minister Koirala. His quest for absolutism was tangible and destructive to emerging democracy’s consolidation. He was not ready to accept other leaders within the party to assume the position of prime minister. He considered that it was his ‘sole right to be the PM.’ He unwisely, apolitically, and unethically moved to exterminate the 'people's choice'-the choice that the House should be able to fulfill its tenure.

PM Girija Prasad Koirala's quest for absolutism was tangible and destructive to emerging democracy’s consolidation.

At this very point, dark clouds stormed the democracy of Nepal, thus eventually pushing Nepal into a trap of bloody conflict that took the lives of over 17,000 people and pushing Nepal's economic development three decades behind. In that case, every lawyer on behalf of the petitioners and general people warned the court repeatedly that 'every Prime Minister in future would be opting without hesitation to dissolve the House and would refuse to accept to give up his political arrogance.' That truly happened.

The country saw another attempt to dissolve the House after nine months of the mid-term elections. The court, seeing what was going to happen in the future, declined to 'constitutionalize' the attempt, but it consequently fell into a trap of politicization of the judiciary, which ultimately destroyed the faith of people in the court. In the future, the interests of political parties to appoint their supporters or cadres in the court got intensified. They saw tangibly that by placing their supporters in the court, they would be able to preserve and protect their unholy, unethical, and vested interests.

Today, the judiciary is fully infested by politically active and biased judges. People’s confidence over the judiciary has gone to ashes. Professional judges are helpless. In subsequent years, the House saw two other attempts of dissolutions within a very short period, thus inviting a culture of an unchecked and unending political gimmick and horse-trading for powers. The court has thus lost its fairness, vitality, and sanctity.  

Today, the judiciary is fully infested by politically active and biased judges.

The second strand of the argument pursued in 1994 was an opinion of PM’s lawyers who argued without restrains that 'the dissolution of the House' is a prerogative of the prime minister. This argument was mistaken and constructed in line with a deceitful belief of medieval European political theory that 'the king (sovereign) could dissolve the House as a punishment for its annoying attitude'. The post-19th century dissolution jurisprudence does not accept this theory. In the 20th century, the power of the crown in the UK, Canada, and Australia regarding the House dissolution was construed as a tool of 'maintaining a balance of powers between executive and legislative bodies.' It had very limited scope and applicability. And, in our time the concept of the House dissolution by the PM is redundant—the Fixed-Term Parliaments Act of 2011 in the UK has eliminated the concept of dissolution for the mid-term elections. However, Nepal’s democracy is facing a problem of dissolution, despite the full prohibition of the constitution to dissolve the House of Representatives. Without a doubt, if this has been wrongly sustained by the court as in 1994 a fresh strand of dissolution process will ensue.    

Invoking the redundant principle of 'PM prerogative for fresh elections' is an unfortunate act for the democracy of Nepal.  On December 20, 2020, Nepal's PM opted to go for 'mid-term elections,' which is unauthorized by the Constitution of Nepal, adopted and promulgated by the Constituent Assembly after several critical difficulties and challenges. PM Oli argued: ‘I was cornered and picketed, and was not allowed to work.’ However, Nepal’s HR worked smoothly in the past and is not in session currently. His problem confined within his party, and it was a ‘leadership contest rather than a challenge to his government.’ The main issue within the party centered around the lack of ‘decision-making process following party organization rules and regulations.’ His colleagues within the party complained that the party system of following the decision-making process set forth by the Party Constitution and regulations. They said the committee system had been paralyzed, and he refused to convene the party meetings.’ Neither had he participated in the party committee meetings. 

Nepal’s present Constitution regarding the dissolution of the HR is fully unique—different from that of the Westminster model. Under the present Constitution of Nepal, Article 85 (1) has explicitly declared or guaranteed tenure of 'five-year' to the House of Representatives, it is not dissolved earlier than the completion of the fixed-tenure. This guarantee against dissolution under Article 85 (1) is operative or functional through various provisions under Article 76.

Nepal’s present Constitution regarding the dissolution of the HR is fully unique—different from that of the Westminster Model.

Article 76 is dedicated or related to the arrangements of the appointment of the prime minister after the general election. The sub-article (1), authorizes the President to appoint the leader of the party securing majority in the HR as the prime minister and as such a PM appointed under this provision is exempted from seeking 'confidence of the HR,' at least for two years from the date of the appointment. This privilege is guaranteed under Article 100 (4). It means that HR cannot change the PM for two years. However, s/he may face a 'no-confidence' motion after the expiration of the period of two year’s absolute protection. If one-fourth of the existing members decide to move for a no-confidence motion against the PM, under Article 100 (4), the PM is obliged to defend himself and the failure will remove him from his position.

Article 100, with its several sub-articles, is a constitutional measure to 'render the PM accountable to the HR.' He/she cannot skip by any indirect means to 'let his/her tenure unaccountable and un-amenable to the system of rule of law and democratic values and principles.' The HR dissolution appeared right after two-year period has come to an end. Can PM take such an action to protect him from the obligation of facing the no-confidence motion or requirement to obtain fresh confidence? The language of the constitution is plain and clear. He cannot.

In 1995, the Supreme Court of Nepal in PM Manmohan Adhikari’s case of dissolution held that ‘no PM can dissolve the house to evade the obligation of the no-confidence motion.’ The court said, no HR can be dissolved until it can give an alternative government. In the present case, the House is competent to give an alternative government, because the majority of the ruling party and other parties have strongly opposed the PM’s act of dissolving the House.

The House is competent to give an alternative government, because the majority of the ruling party and other parties have strongly opposed the PM’s act of dissolving the House.

Article 76 is plain in both language and structure. In case the majority government becomes impossible to form as in the way outlined by Article 76(1), the process of forming the government proceeds to sub-article (2) which provides for 'appointment of a member of the HR as the PM for being supported by two or more political parties.' This sub-article envisages a 'coalition-led council of ministers.' Such a PM has to 'gain the confidence of the HR within 30 days.' The failure of such a candidate to obtain HR’s confidence within 30 days will lead to the activation of sub-article (3), thus giving the leader of the Largest Party in the HR to form the government, with a similar condition to obtain confidence within 30 days.

Lastly, it is provided under sub-article (5) that an individual member, as the last option, can attempt to form the government provided that processes under sub-article (2) and (3) fail to achieve the confidence of the HR. Such members of HR can attempt to form the government subject to the condition of confidence within 30 days. Now, his/her failure to obtain confidence brings the process to an end and also the tenure of the HR. In such a situation, s/he may, under sub-article (7), can move the recommendation to the President for the effect of the dissolution of the HR and can propose a new election within six months. In such a situation, the PM under Article 76 (5) can function as a government for election.

Interestingly enough, Article 76 (7) is an outcome of the conscious and meticulous intention and efforts of the Constituent Assembly (CA) to 'deny power to the PM to dissolve the HR.' This conscious effort of the CA is an outcome of the 'fateful failure of the 1990 Constitution's to prevent PM to kill the HR by his capricious design, which indeed led to the gross failure of the Parliamentary Government in Nepal. Article 76 and 100 together, through their various concrete and explicit sub-articles, establish a new constitutionalism or the unique principles of Nepali Constitutional Jurisprudence, as follows: (1) Nepal's Constitution, under Article 76 (1), has adopted the principle of 'fixed-term tenure to the HR, so that it consciously prevents granting power to the PM, with full majority, to take a course of 'dissolving the HR;' (2) the HR, under Article 100 (4), is unable to coerce the PM to seek confidence or face no-confidence motion for a period of two years, thus protecting PM from parliamentary disturbances in his/her initial tenure; (3) it means that the PM, under Article 76 (1), is unchallenged by the HR for two years and it also means that s/he is obligated, under Article 100 (1) and (3), to seek confidence or face no-confidence after expiry of this period; and (4) the PM, under Article 76 (1), (2) and (3) is unable or incompetent to enjoy power of dissolving the HR in lieu of their absolute protection provided for a period of initial two years against no-confidence motion. The Constitution of Nepal in this matter is conspicuous and meticulous. Any attempt to dissolve the HR by a PM under Article 76 (1) is an unconstitutional act, also morally and politically unscrupulous.

The present PM's act of dissolving the HR is, therefore, a tragedy to the second-time fledgling democracy of Nepal. Like the first dissolution of the HR in 1994 by PM Koirala proved to be a political and economic disaster in Nepal, the present dissolution is going to echo or repeat the same disaster, and even more pernicious one. The 1990 Constitution had recognized the power of PM to make a recommendation for the dissolution of the HR, but the dissolution itself was carried out untimely, unwarranted and against the wish of the people; it was also malicious. However, it had room for the court to 'test the constitutionality' of the act by using measures of intention, consequence, and political practices. The prime matter of consideration was the ' construction of the power of PM under Article 53(4).' The present dissolution is, however, ab-initio void because the present Constitution in no provisions at all grants to the PM with the majority a power to 'invoke the authority of ending the HR' by any means. On the contrary, s/he has been obligated by the constitution to seek confidence or face a no-confidence motion after the expiry of the initial two years’ absolute protection.

Like the first dissolution of the HR in 1994 by PM Koirala proved to be a political and economic disaster in Nepal, the present dissolution is going to echo or repeat the same disaster, and even more pernicious one.

Thus, the present Constitution has not merely eliminated the power of dissolution by a PM with the majority but also prevented him/her to attempt recommending for dissolution. Hence, the Court has nothing to interpret something called the 'intention of the constitution framers.' The intention of the Constitution framers, as it has been explicitly recorded in the discussion paper and recommendation of the State Structure Committee of the First Constituent Assembly, the record of the discussion in the Constitution Drafting Committee, and the record of the discussion in the 'Dispute Reconciliation Committee, was to fully get rid of the PM privilege to move for dissolution of the HR.' The drafters intend to allow the HR to dissolve itself by failing to give a government and the mechanism of the self-dissolution is explicitly provided for by Article 76 (7), i.e. when the HR fails to give a government it gets reelected. It means that the present Constitution has abolished the concept of Mid-Term Elections or the power of the PM to seek a so-called fresh mandate.

Why it is so done? Or why the Constitution framers intended to get rid of the PM's power to dissolve the HR for so-called fresh mandate? The most obvious reason is that the 'present Constitution obtained legitimacy from the Interim Constitution of Nepal, 2007, which in turn drew its authority from two major documents dedicated to resolve the conflict or build peace amid the 'violent insurgency Nepal had been gripped for a decade.' The critical conflict Nepal witnessed has seen (a) violent political chaos for a decade, (b) the deaths and mutilation of countless people, (c) an economic disaster, (d) the royal emergency rule imposed by the king against the constitutional authority, and (d) the misery of the lives of general people.

The conflict had been ended by negotiations between 'democratic forces and the rebels—the Communist Party of Nepal (Maoist). On July 6, 2006, Seven Political Parties and CPN (Maoist) agreed to make a ceasefire and bring the war to an end for all time in the future. This negotiation agreement consented to 'holding the Constituent Assembly election' and to frame the new constitution by it, with a commitment to respect the fundamental principles of multi-party system, human rights conventions, rule of law, and the recurrent elections to form the government.

Immediately followed the signing of the Comprehensive Peace Accord (CPA), which outlined the detailed process of Constituent Assembly elections and fundamentals of the future state, including the federal structure. It is obvious that the 'present Constitution draws from the peace-building process and state restructuring demands of the general people.’ This Constitution is not an outcome of the wishes or efforts of a few intellectuals, leaders, and lawyers.' It is a Constitution 'given by the sovereign people to the people.' This statement is explicit in the first line of the Constitution's preamble. It says, 'We the sovereign people of Nepal have given…'

The sixth paragraph of the preamble says that 'Nepal is committed to building socialism by respecting the democratic values.'  Most importantly, Article 84(1) refers to the composition of HR by two different categories of the elected representatives. The first category consists of 165 members being elected by the process of the 'first-past-the-post' electoral system, and another 110 members are elected in the name of the political parties. In the second category, the common people vote for the favored political party. This system implies that Nepal's present constitution has adopted the system of 'people's participatory democracy' and thus the existing constitution represents a 'communitarian constitution.' Neither the constitution nor the democratic system is ' governed by the Westminsterial Model' in which PM is also a leader of the House. In Nepal's present system, the PM is not a leader of the House. So his power to chastise the HR is intentionally removed or abolished. If the PM is given the privilege to dissolve the HR, the obvious consequence is that it will destroy the constitutional scheme of participatory democracy, the goal to transfer Nepali society into the socialist democratic structure, and the past peace process.

Further, interestingly, Article 84(2) guarantees 'population size-based participation of various Nepali ethnic groups.' The HR is a body that guarantees the 'unity of Nepal' as it provides participation of each group in HR. The PM of Nepal is a leader of the state but not the leader of the ethnic group. Hence, he/she is philosophically incompetent to 'destroy a body of representatives' that combines different ethnic groups—it is not the PM but HR that represents the people of Nepal. Anything against this scheme will, therefore, destroy the base of 'peace in Nepal.' HR is a link institution between the people of Nepal and the government.

The current PM's act of ending the life of HR is motivated by some wrong assumptions.

The current PM's act of ending the life of HR is motivated by some wrong assumptions. First, he has been inspired by a wrong notion and understanding that Nepal's parliamentary system is a 'Westminsterial Model' in which the PM has authority or power to seek fresh mandate through the mid-term elections. Nepal is, however, a socialism-oriented participatory democracy, in which the Council of Minister enjoys the executive power. Hence, the PM cannot impinge the jurisdiction of the House, nor can it dissolve it. This is clear from the letters and spirit of the present Constitution. Regarding the PM’s justification for the HR dissolution, the last session of the HR ended happily or without challenging the PM's position. Hence, the reason for seeking a mandate is presumptuous and unfounded.

There is no fact to base on which it can be concluded that PM's position in parliament was insecure or at risk. The winter session of the HR had not been called upon, and thus the PM's argument that he had been disturbed to work by the HR is unfounded. On the other hand, facing the no-confidence motion, it is his constitutional obligation to abide by—it is unconstitutional to assert a right not given by the Constitution on the 'ground of supposition.' His crisis confines within his political party and the general people have nothing to do with it. It means that his internal political crisis has been the only ground to 'chastise the HR'. Hence, PM's argument is undemocratic. A leader has to obtain support through the democratic process and refrain from resorting to coercion or unconstitutional means.

Now the case has gone to the purview of the Court. According to Article 128(2), the PM's recommendation and subsequent approval of the President are to be judicially reviewed by the Supreme Court. Hence, the PM’s act of dissolving the HR is a matter of judicial review—that means it is a process of determining the scope of the provision laid down by Article 76 (7). The primary question to be settled by the court is: 'Can the PM appointed under Article 76(1), who enjoys absolute majority in the time of the dissolution recommendation, enjoy the privilege given to the PM under 76 (7)? The provision represents a situation where the House is unable to give a government?' Article 76 (7) is an exceptional situation that leads to the election of HR for securing a 'new government.' This provision is not a power of the PM under Article 76 (1) to punish the HR for its lack of support to him.

Most importantly, this question does not fall within the purview of the Constitutional Bench; it should not be ‘reviewed by the Constitutional Bench' which has jurisdiction to 'entertain disputes occurring between federal government and province, between provinces and between the province and local government.' Another jurisdiction of the Constitutional Bench is related to disputes concerning the electoral process. How this issue has been embraced to settle by the Constitutional Bench is not clear yet.  It seems to be a grave mistake. The Supreme Court cannot entertain the wrong jurisdiction. It is therefore a matter of 'review of the constitutionality of the act of PM but not a matter of 'conflict between government bodies.' In the past, such issues have been settled by the Supreme Court through a larger bench.  

Another jurisdiction of the Constitutional Bench is related to disputes concerning the electoral process. How this issue has been embraced to settle by the Constitutional Bench is not clear yet.  It seems to be a grave mistake.

This is going to be a fundamental case—fundamental in the sense that (a) if it goes wrong it will destroy the fundamental structure of the Constitution of Nepal, which has been a consequence of the Peacebuilding process; (b)if it properly analyzes and establishes guidelines of the implementation of the Constitution, it will end the future crisis of the constitution. The case, therefore, provides a crossroads for Nepal's democracy, peace and inclusion, and constitution implementation. Wrong interpretation might lead to conflict. So, the political leaders and court, as well as lawyers, have greater responsibility.

Published on 12 January 2021       

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