Tuesday, August 3, 2021

Reading the court verdict

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After 11 days of gruelling court deliberations, consuming a total of 33 hours by 77 legal-eagles, including review of submitted bahas notes and responses from the defendants, the five-member Constitutional Bench, finally, released on 12 July a 167-pages long verdict on second-time dissolution of the House by Prime Minister KP Sharma Oli.

The verdict contains 120 sections divided into numerous sub-sections. Excluding preliminaries and annexes, the verdict document can be broadly divided into three sections: description of the situation (13-60 pages), analysis of the situation (61-155 pages) and finally, the verdict (156-159 pages). The five presiding judges have unanimously declared the verdict.

However, the media reported honourable Ishwor Khatiwada behind the drafting of the document. Therefore, his signature appeared at the right hand corner followed by the signatures of the four judges, including CJ at the second row, acknowledging that they all agree with the views and opinions expressed in the document. This is said to be a normal practice in the judiciary. However, earlier verdict was signed by all five honourable members, their signatures appearing in a single row. 

Just to read the whole document, for a person with no background in constitutional law or political history, it will take hours. Immediately, after the release of the verdict, Nepali Congress President Sher Bahadur Deuba issued a press statement saying the verdict to be historical. But I doubt him reading the full document before issuing his statement.

The document is written in Nepali language but there are a total of 70 footnotes or references primarily written in English as they refer to international cases and practices. Due to language barrier and sheer size of the verdict document, inquisitive non-Nepali speakers will find difficulty getting full access to the document. For someone not interested in preliminaries and description of the situation, the actual reading takes not more than 50-60 pages.

For a person coming from non-legal background, one must admire the simplicity of the language used in the document. This was featured in earlier verdict as well. Normally, legal documents are too cumbersome to read and difficult to comprehend. One can easily get lost in the fog of legal jargons and profuse use of “double negatives” phrases instead of directly saying something positive.

To be honest, the verdict document gives an impression of an academic paper (remember, the use of 70 footnotes/citations). There are elaborate discussions on conceptual issues like constitutional morality, political stability and instability, models of parliamentary democracy, valid reasons behind parliament dissolution, and check and balance among three organs of the state. It also has minute analysis of our constitutional clauses leading to the dissolution of the House and prerogatives of the President and the Prime Minister. The document will be of immense interest to students not only of constitutional law and jurisprudence but of political science, public policy and administration, ethics and political history.

Anyone interested reading directly the substance of the matter can refer to Section 31 at page 61 of the document where four basic questions, that needs to be addressed by the Bench, are listed. There is also a fifth category which includes several questions related to technicalities of the case and several other secondary but related questions to the case.

The four basic questions included: (1) constitutionality of House dissolution, (2) restoration of the House, (3) appointment of Deuba as the prime minister under Article 76(5) and (4) matters related to party discipline (whips). The questions mentioned under the fifth group included matters related to: (a) technical issues related to case registration, (b) jurisdiction of the court to review presidential order, (c) discretionary power of the President, (d) eligibility of the PM appointed under Article 76(3), not securing vote of confidence, claiming to be appointed under Article 76(5), (e) requirement to have party approval as a “basis for securing confidence” for being appointed as PM under Article 76(5), (f) appropriate venue for testing “basis of securing confidence” (g)  mala fide intention behind the dissolution of the House, and (h) conditions related to House dissolution etc.

The verdict is totally in line with Deuba’s writ petition. It has not deviated an inch from what is being petitioned. The verdict has answered all the reservations, apprehensions and doubts raised by the defendants. These included a possibility of country veering towards partyless panchayat days, the court not having jurisdiction to appoint a PM and questioning the decision of the President. During the deliberation, the defendants have raised an important question with far reaching implications, that is, what if the President does not comply with the Court order. The verdict clearly spells out that such an act is tantamount to transgression of the Constitution and in such a situation no one can be exempted from holding onto power (section 119, pages155-156).

In Section 117, it is mentioned that the PM giving no business to the (restored) House and dissolution of the same after prorogation is tantamount to “fraud on constitution”. In another master stroke, the document speaks of the Executive seeking to control the Legislative when, in reality; it should be other way round.

Anybody reading the document will come to realize that the judges seem to have been terribly irritated by PM Oli dissolving the House which the Court restored in February. Definitely, the political course of the country is still in choppy waters but the verdict has spelled, if not “literally” then “faithfully”, that the President and the Prime Minister hold no moral authority to hold onto power. This scribe’s understanding is: The latter has gone, the former should follow suit.

Published on 15 July 2021       

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