If a majority government does not wish to run the government only sensible way out is to resign and pave the way for others to form the government.
As the dissolution of the parliament is being increasingly questioned on the ground of its constitutionality, Prime Minister K P Sharma Oli is focusing on political aspect of the dissolution. The decision to dissolve the parliament and call for early elections is a political decision and therefore it is outside the purview of the Supreme Court, he argues. The PM is stressing that in a parliamentary democracy, the PM has a prerogative to seek a fresh mandate from the people. This is particularly so, he argues, when he is not allowed to function properly and when he is besieged by people, leg-pulling and back-stabbing him.
Reminding bad old days of Panchayat era, his foreign minister Pradeep Gyawali is reported to have said that we have adopted Westminster style parliamentary democracy with a “Nepali flavour”. No one knows what he meant by “Nepali flavour”.
Is it constitutional?
The present constitution guarantees the tenure of the parliament to be five years. Saving the case of hung parliament, when government cannot be formed, the parliament can be dissolved before the expiry of five years. The drafters of the new constitution made this provision based on past experience where successive whimsical prime ministers dissolved the parliament at the middle of the road and brought political chaos and instability in the country, including horse trading, overnight party defections, political manoeuvring and use of “dirty money” in politics. To secure political stability, at least for a full five-year period, the drafters also introduced some other provisions such as: (a) no-trust motion cannot be filed within two years from the date of formation of the new government, (b) no two no-trust motions can be filed within a single year and (c) when filing a no-trust motion, it is compulsory to specify the name of the alternative PM.
By abruptly dissolving the parliament and declaring early polls, PM Oli made a farcical joke with the drafters of the constitution. Some people are interpreting the PM’s action to dissolve the parliament as an action to dissolve the constitution itself.
The chart below depicts the schematic flow related to the dissolution of the parliament as provisioned under Articles 76.1 through 76.7. It shows that only a minority government or in a situation of hung parliament, the parliament can be dissolved and early elections can be declared. However, a majority government enjoys no such rights till the expiry of five-year term.
During the court hearings, the chief justice is reported to have asked a hypothetical question: “Can a majority-run government be forced to run the government against its desire for full five years?”Obviously, a sane person cannot be prevented from going insane. If a majority government does not wish to run government only sensible way out is to resign and pave the way for others to form the government. Abruptly dissolving the house and calling for snap election is tantamount to adopting squat the earth policy.
Our “jack-of-all” PM is relentlessly suggesting us that we should read the constitution to figure out his prerogative to dissolve the parliament. He has cited Article 85(1) of the constitution where it is stated that the “term of House of Representatives, unless dissolved earlier pursuant to this Constitution, shall be of five years.” Literally, he has taken “unless dissolved earlier” as PM’s prerogative to dissolve the parliament when, in fact, the specific sub-clause was meant as a conditional statement for the dissolution during hung parliament situation as mentioned in Article 76.7.
The PM is floating another argument that he holds 64 percent majority in the house, the remaining 36 percent is not possible to come up with an alternative government and therefore, in the absence of an alternative government, only way out is to dissolve the parliament and call for fresh polls.
If the PM is so sure of his majority, he could have proved that in the parliament before deciding to dissolve the parliament.
There are other controversies surrounding the constitutionality of PM’s action. One such point is the date and timing of the vote of no-confidence motion registered in the parliament secretariat. The PM has shamelessly accused the Speaker of cheating on the timing the vote of no-confidence was actually registered in the secretariat. According to him, the vote was registered in the evening, that is, after the dissolution of the parliament, but the Speaker cheated by back timing the registration of the vote as being received in the morning.
There are also lapses with the President’s Office. The Oli government was formed under Article 76.2, definitely, not under 76.1 which is being erroneously mentioned in the press release issued by the President on December 20.
Going by the provisions made in the constitution, one can definitely say that the PM’s action to dissolve the parliament is unconstitutional. Is it political then?
Definitely, political decisions are outside the purview of the court. The decision to abolish the Panchayat system in 1990 and the decision to reinstate the House in 2006 with Girija Prasad Koirala instead of Sher Bahadur Deuba as the PM were political decisions.
Every political decision calls for public legitimacy which obviously will be backed by political parties. If the dissolution of the parliament was a political decision then there must be some degree of consensus among the major political parties. But the truth is other than support from his political faction, there is no political consensus on the dissolution of the parliament and call for snap polls.
Except smaller parties like Nepal Workers Peasants Party, Jana Morcha and RPP which have welcomed PM’s call for early polls, majority of the parties represented in the parliament are against the decision and are waging street demonstrations demanding reinstatement of the parliament.
The PM may have a point when he says that he was forced to take this action simply because he was not allowed to function properly and there were constant leg pulling and back stabbings. Given that there was also a conspiracy being hatched to oust him and impeach the President. Granted that instead of keeping the country in a situation of turmoil for two more years, he made a political decision to have early elections to seek fresh mandate from the people to help end political imbroglio and strengthen democracy.
However, the fact of the matter is that the political stalemate situation is due to internal strife within his party. He is holding the whole country hostage because of the dispute within a single party. This is where political nature of his decision is questionable.
Moreover, a care-taker government, expecting to organize polls within four months, is behaving like a normal government. It is busy appointing henchmen in constitutional bodies, expanding and reshuffling cabinet and wasting time organizing public rallies and delivering useless speeches and cracking jokes.
Going by the actions and unfolding of events, one can fairly say that the decision to dissolve the parliament and call for early elections is neither constitutional nor political. It is purely whimsical.