Decoding controversies surrounding writ petitions

Published On: January 25, 2021 07:00 AM NPT By: Narayan Manandhar

Several controversies have surfaced surrounding the dozen writ petitions filed against the PM’s decision to dissolve the parliament.  Have a look.

Currently, the legal-eagles are busy debating at the Constitutional Bench of the Supreme Court the constitutionality of parliament dissolution. It is reported that over 300 lawyers have enlisted their names for deliberations. Given the time constraint, the Court is considering to limit deliberation time for 30 minutes per lawyer. One can fairly imagine the required time it will take to deliver the final verdict.

Though the crux of the debate revolved around whether a government with majority does or doesn’t have a prerogative to dissolve the parliament and go for mid-term polls at its will, several other issues and controversies have surfaced surrounding the dozen writ petitions filed against the PM’s decision to dissolve the parliament. There are also some interesting and equally intriguing twists and turns coming out from the court hearings putting the public in a kind of suspense situation like in a Sherlock Holmes movie.

At the start, the debate concentrated on possible conflict of interest related to one of the five presiding judges in the bench. With the judge volunteering to quit the bench, the hearings moved on to whether the issue should be taken over to the full bench. I suppose this debate has been settled. Based on what is being reported in the media, I will summarize here some of the issues and controversies surrounding the debate for the readers.

Article 76.1 or 76.2?

Was the Oli government formed under Article 76.2—as a coalition government—or under Article 76.1— as a government with majority? When the government was formed in February 2017, CPN-UML and Maoist Centre were separate entities. None of the parties commanded a majority. Therefore, the government was formed under Article 76.2. But the two parties were united nearly after three months giving a government with a clear majority as mentioned in Article 76.1.

The debate is triggered by the press release from the Office of the President, and also by one of the petitioners, saying the government was formed under Article 76.1 when, in fact, it was formed under Article 76.2. The difference is significant. When the coalition government is formed or a coalition partner leaves the government, it has to garner vote of confidence in the parliament. In this case, when Upendra Yadav’s party withdrew its support, the Oli government did not have to be tested for vote of confidence as it enjoyed, after party unification, a comfortable majority.

Notice publication in the gazette

With the revelation that the presidential notice on the dissolution of the parliament was not published in the Gazette Paper, the debate is about whether we should assume the parliament to be still alive or not. Now, the media reported that such a notice has been hurriedly printed out, with back dating, nearly after a month, possibly triggering another debate: What is the legal validity of such a back dated notice?

Retrieval of the original papers from the court

A media hype and sensation was created when it was revealed that the cabinet decision to dissolve the parliament contained no reference to articles of the constitution. This triggered another debate: Can the President amend the cabinet decision? For the press release issued by the President’s Office cited constitutional articles, as a basis for dissolving the parliament.

It is also reported in the media that the government has retrieved the submitted original documents from the court. There are now two cabinet proposals on parliament dissolution both dated 20 December, and addressed to the President—one by the PM citing the articles of the constitution and other by the Chief Secretary without citing articles of constitution with no changes in the text. Could this be a case of document tampering (or a case of criminality) at the highest level of power?

Vote of No-Confidence

A vote of no-confidence motion was also filed on the same date when the parliament was dissolved. The controversy surrounds over its timing: Was it registered before or after the dissolution of the parliament? In a televised interview, the PM has accused the Speaker of shamelessly correcting the timing of the application letter registered at the Parliament Secretariat, while the opponents argued that the no-confidence motion was filed before the dissolution of the parliament. People want to know who really tampered the document here.

Status of the PM

To become a PM, it is a pre-condition to be the member of the parliament. Having dissolved the parliament, the PM has also lost his MP status. Therefore, he is reduced to a caretaker status responsible for holding elections in April/May. But the PM speaks as well as acts as if he is still a full-fledged PM. In a televised interview given to a foreign channel, the PM has openly asserted that there is no provision for a caretaker PM in our constitution. He is also challenging that no one can remove him from the office. Are we in a constitutional quagmire?

Two-Third majority raison d'être

In the cabinet proposal for dissolving the parliament, the government has cited seven out of eight reasons for dissolving the parliament. All these seven reasons included securing two-thirds majority in the next elections so that the government formed thereafter can be stable and perform smoothly. Could this be a ground for dissolving the parliament? The argument is not only shameful but also ludicrous. What guarantee is there that the parties contesting next elections will secure two-thirds majority?

Regressive or Progressive?

Should the articles of the constitution, especially the ones heavily relevant to the present debate—Articles 76.1 through 76.6—on the formation of the government be read in a progressive manner (as often cited by the writ petitioners) or could they be read in a regressive or backward manner?

Prerogative question

The most important question posed by the Chief Justice to the petitioners is: Why cannot a government, with a majority, dissolve the parliament and go for a fresh mandate? Or why should it be forced to run the government for a full term? Again, there are more sub-questions like: What would happen if the parliament is restored and the PM, again, dissolves it? What benefit is there for the public asking NCP to run the government for two more years? Hosts of other issues have been raised over this question—ranging from the review of debates in the CA to the interviews by the then CA Chairperson to our past experience on political instability—due to random, discretionary dissolution of the House by the successive PMs. While citing the difference between earlier constitution and the present one, the lawyers have stressed that in earlier constitution, the right to dissolve the parliament rested with a strong PM while in the present constitution it is with the weakest PM. The primary purpose behind is to search, exhaustively, all possible forms of government (majority, coalition, largest party and charismatic leader) before the House is finally dissolved for another round of elections.

Immediately, after the promulgation of the present constitution, a constitutional expert (possibly from Germany, sorry I cannot recall his name) predicted the life of the present constitution will be of 20 years and go for ten amendments.

His prediction was based on statistical modelling.

I suppose I was right arguing against him.

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