Through an unprecedented unanimous verdict, the Supreme Court has ruled that the prime minister’s right to dissolve the House of Representatives is unconditional, ending six years of ambiguity and uncertainty. The 11 judges of a special bench of the Supreme Court also refused to entertain political questions surrounding the dissolution order, clearing the atmosphere ahead of the November 13 election. The court has also ruled that privileged communication between the King and the prime minister cannot fall under constitutional and legal examination. The core message of the apex court is clear and concise: political questions must be settled in the court of the sovereign people, not in the apex court.

By KESHAB POUDEL

In the jam-packed special-bench chamber on the third floor of the Supreme Court building, Chief Justice Keshav Prasad Upadhyaya read out the unanimous 40-page verdict dismissing petitions demanding the restoration of the House of Representatives. The Supreme Court stated that the prime minister’s right to dissolve parliament is not conditional and that the court cannot entertain questions relating to privileged communication between the King and the prime minister.

In a society torn by dissension and contradictions, the Supreme Court justices have produced a ray of hope on the possibilities of consensus. Supporting all the other opinions of the 10 judges, Justice Krishna Jung Rayamajhi wrote an additional opinion saying that every prime minister, whether majority or minority, can equally exercise the right of dissolution under Article 54(3) of the Constitution of the Kingdom of Nepal 1990.

Supreme Court : Gurdian of the Constitution
Supreme Court : Gurdian of the Constitution
When Chief Justice Upadhyaya began reading out the verdict, the atmosphere was tense in and around the court. Police were deployed on all entry points to the court premises to prevent possible disturbances. Visitors had to undergo tight security checks.

With each page Chief Justice Upadhyaya turned, tensions appeared to ease a few notches. Following the hour-long recitation, the minds of people shifted from the Supreme Court to the political parties.

The first unanimous decision of the Supreme Court may be criticized by a section of politicians andconstitutional lawyers for long. But it has injected new life into the political process by sending across loud and clear the message that political matters are not to be settled by the court.

“The dissolution of the houseis a political issue outside the purview of the court. The apex court has the right to interpret only those issues that are of a legal and constitutional nature. It cannot give its verdict on political, social and economic disputes,” said Chief Justice Upadhyaya.

The court said issues like whether elections can be held in a free and fair manner, whether the country’s economy can sustain the burden of new elections, or whether it was necessary to dissolve the House of Representatives are not matters the court should review.

Politics Shifts to Parties

The apex court’s unanimous decision has ended the political deadlock that had gripped the country for over two months. Dismissing the petitioners’ demand to quash Prime Minister Sher Bahadur Deuba’s recommendation on May 22 to dissolve the House of Representatives and to reinstate the lower house, the court has paved the way for new elections on November 13.

In the forefront of welcoming the verdict was Nepali Congress leader Krishna Prasad Bhattarai, who had maintained Sphinx-like silence since the ruling party split on June 18. He expressed satisfaction over the verdict and said he hoped it would help to unite the party.

Political parties called urgent meetings of their top policy making body and endorsed the decision of the court. Although Nepali Congress president Girija Prasad Koirala is unhappy with the verdict, his party, too, declared it would face the elections.

“The Supreme Court’s decision is unexpected, but our party will accept it,” said Arjun Narsingh KC, spokesman of Koirala-led Congress. “Since the Nepali Congress is a democratic party with a very long history, it does not have any hesitation in taking part in the elections. We will now focus our attention on the elections,” he said.

The court’s decision is likely to have a significant influence on the divided Nepali Congress. As soon as the verdict was read out, the Deuba faction urged all workers to prepare to face the people and hinted at possible unity. “The court has rightly upheld the prerogative of the prime minister to dissolve the house. It is up to the other group to decide whether they want unity or [want to] go alone in the elections,” said Home Nath Dahal, spokesman of the Deuba Congress.

The country’ major political parties welcomed the decision and accepted Deuba’s challenge to face the people. Former chief justice Biswonath Upadhyaya, however, criticized the verdict saying it distorted the spirit of his 1995 decision that reinstated the lower house dissolved by the minority UML government by prime minister Manmohan Adhikary.

The UML, which went along with Deuba’s dissolution order saying it was the prime minister’s prerogative, endorsed Supreme Court decision. “We are ready to face the elections. The government now has to lift the state of emergency to pave way for the election campaign,” said UML general secretary Madhav Kumar Nepal.

The Rastriya Prajatantra Party (RPP), the third largest group in the dissolved house, too, lost little time in welcoming the verdict. “We welcome the court’s verdict ,” said RPP vice-president Dr. Prakash Chandra Lohani. “We don’t have any hesitation to face the people. In a democracy, it is the people who have the final say.”

Nepal Sadbhavana Party, for its part, said it was looking to the future. “We are now in a new political situation,” said party general secretary Hridayesh Tripathy.

Verdict of the Court

The Supreme Court clearly ruled that the dissolution of the lower house is the prime minister’s unconditional right that can be exercised in any condition, including a state of emergency. The prime minister can go for fresh polls any moment, as the constitution has not in any way linked the state of emergency and the dissolution of the house. The court avoided entering the petitioners’ contention that the situation was not favorable for fresh polls, saying that was a political decision.

Article 53(4) of the constitution allows the prime minter to recommend the dissolution of the House of Representatives and seek a fresh popular mandate. The court also ruled that it cannot enter into the reasons the prime minister provided the King in seeking the dissolution. On the question of mal-intention, the court said the petitioners’ arguments lacked facts to substantiate their claim that the prime minister’s move was malafide. The chief justice said the court couldn’t provide a panacea for all kinds of controversies, issues and disputes.

Prime minister and King.Although one section of the Nepali Congress, from the beginning, accused Prime Minister Deuba of “plotting to hand over democracy to the palace,” political developments have shown that the popularly elected leader of the house is the king’s best adviser.

Accepting the dissolution recommendation, King Gyanendra sent a clear message that he wants to rely on the prime minister on political and constitutional questions. “I don’t understand how Deuba handed over the democracy to power when he convinced the King to accept his order of dissolution,” said a constitutional lawyer. “Actually, the King’s decision strengthens the prime ministerial and democratic system.”

When the constitution has clearly mentioned that the political dissolution has clearly two players – the King and prime minister – no other institution can intervene. The prime minister has every right to recommend dissolution and seek a fresh mandate from the sovereign people. The constitution does not lay down any condition. The 11-member bench has cleared the confusion created by the Supreme Court verdict of 1995.

Constitutional lawyers hold the view that the verdict gives the prime minister democratic power to discipline the party and the opposition in parliament. It would also end the anarchy and indiscipline that have plagued the country for the last seven years. Because of the confusion over the constitutional articles, Nepali Congress leaders like Krishna Prasad Bhattarai and Girija Prasad Koirala helplessly resigned from the prime ministership.

The court verdict also establishes the fact that the King cannot do any wrong, as the King dissolved the house at the recommendation of Prime Minister Deuba. This is the right interpretation of Article 35(1) of the constitution, which says: Except as otherwise expressly provided as to be exercised by His Majesty or at His Majesty’s discretion or on the recommendation of any institution or official, the powers of His Majesty under this constitution shall be exercised upon the recommendation and advice, and with the consent of the Council of Ministers. Such recommendation, advice and consent shall be submitted through the prime minister.

Separate petitions were filed by 61 MPs of Nepali Congress and National People’s Forum and four lawyers demand the restoration of the of the house on the ground it was malafide and against the spirit of the constitution. Chief Justice Upadhyaya constituted an 11-member special bench to hear all the petitions together.

Unanimous Decision

Such a unanimous decision was not possible in the last three cases of dissolution. Although, Supreme Court judge Krishna Jung Rayamajhi wrote a concurrent opinion, the enforceable part of the judgment is unanimous.

At a time when Nepalese society is badly divided on various grounds, the unanimity of the Supreme Court has raised hopes of consensus. “I don’t want to comment on the decision of the court. No comment is my comment,” said senior advocate Mukunda Regmi, an architect of the petition filed on behalf of 55 Congress MPs, and a member of the panel that drafted the constitution. Like all the courts in the world, the Nepalese apex court has accepted the fact that the court cannot enter the privileges communication between the King and Prime Minister. The court’s verdict has made the prime minister powerful and accountable to people.

According to Article 53(4) of the constitution, His Majesty may dissolve the House of Representatives on the recommendation of the prime minister, His Majesty shall, when so dissolved the House of Representatives, specify a date to be within the months, for new elections to the House of Representatives.

Under the doctrine of separations of powers, it is not within the province of the judiciary to determine political questions, except to the extent that power deal with such question has been conferred on the courts by express constitutional or statutory provisions.

The prime minister has the power to choose the time of dissolution within the five-year period prescribed by the Parliament Act 1991. The power of timing is a weapon of great political importance in the hands of the government, especially of the prime minister, says Hood Philip, an eminent British constitutional expert.

Divided Congress and United Opposition

Soon after the court verdict was read out, the most worried politicians happened to be those of the rival Nepali Congress factions. Although both groups claim they are capable of going to the polls alone, they realized the challenge posed by the united communists.

Regardless what members of the rival factions of the Nepali Congress are saying in public, analysts believe the patch-up process has already begun. “I don’t think a large number of Congress members will follow Prime Minister Deuba and Girija Prasad Koirala and commit political suicide,” said a political analyst. “They will unite within fifteen days under certain conditions.”

The Supreme Court decision has upheld the right of the prime minister to go to the people to seek a fresh mandate and clears the hurdle for the forthcoming elections. “Our foremost task now will be to conclude the elections at any cost,” said advocate Radheshyam Adhikary, a Nepali Congress member of the upper house of parliament.

A large number of Nepali Congress members and supporters are waiting for Bhattarai to take up the unity drive. “We don’t want to commit political hara-kiri along with Koirala and Deuba,” said a powerful member of the Koirala-led Congress. “Kishunji has the magic to unite us and give new life to our party.”

If the Nepali Congress fails to work out some kind of unity platform, it would suffer a major defeat at the hands of united communists. After winning the case in the court, Prime Minister Deuba now has to show courage and resolve in initiating efforts to unite the party. The winner should have magnanimity and wisdom in accommodating the other side.

Koirala, too, has to show leadership qualities by inviting his old party colleagues to rejuvenate the Nepali Congress. There are many young Congress leaders who have a long future in politics and want to strengthen the party. Many expect the decision of the court to force the warring factions to find an amicable point for unity. “The Nepali Congress is divided like a family, and it can be once again united,” said Adhikary.

Agenda of Elections

Despite the clearance from the Supreme Court, politicians have to surmount many challenges and cope with many difficulties to hold the elections as scheduled, especially at a time when the Maoist rebels continue to terrorize the rural population. Some see the elections as an opportunity for the Maoists to join the national mainstream. The headlines in the days ahead will revolve around the elections.

Fed up unnecessary political debate and perennial internal political wrangling, the people can now focus on critical national issues as the elections near. “The Supreme Court judges have clearly shown that they don’t want to create hurdles for the elections,” said a political analyst. “The petitioners who have lost the case in the court may win the elections now. No one is the loser; the political process has gained.”

The court has clearly stated that it cannot enter matters of understanding between the King and the prime minister. The mandate of court is that political questions should be settled through elections.

The court’s verdict has shown that there are two players in the dissolution process: the recommendation of the prime minister and the order of the king to go to the people. Now it is the turn of the people to judge the prime minister’s political judgment through the ballot box. That way, the country can put the political process back on track.