Friday, 5 March, 2021

Hearing on House dissolution : Pleading centres on Article 76


By Ranju Kafle

Kathmandu, Jan. 20: Hearing on the writ petition filed against House of Representatives (HoR) dissolution continued for third day on Tuesday in the constitutional bench of the Supreme Court. It centered on actual subject matter today.
Hearing will continue on Wednesday too. Senior advocate Chandrakanta Gyawali will start the pleading in the bench tomorrow.  Five advocates including Shiva Kumar Yadav, Sher Bahadur Dhungana, Rudra Sharma, Chandrakanta Gyawali, who pleaded on behalf of petitioners today focused on article 76 from point (1) to (7) of the Constitution.
Mainly, advocates on behalf of petitioners disagreed on the move of Prime Minister to dissolve the House and said it was an unfair and unconstitutional step. “The constitution has no such provision that allows the Prime Minister to dissolve the House and call for early election,” they said.
However, Attorney General and other advocates on behalf of government had defended the move of the Prime Minister to dissolve the House. They had said it was the need of the hour.
Legal practioners reacted that the right the PM used to dissolve the House was against the constitution and democratic process. Judges in the bench questioned the advocates regarding article 76 (1) and (3) of the constitution.
Article 76 (1) has a provision of government formation where it is mentioned that the President shall appoint the leader of parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the council of ministers shall be constituted under his/her chairmanship.
And clause 76 (7) is about House dissolution. It mentions that the President, on the recommendation of the Prime Minister, can dissolve the House and announce a date of election.
Chief Justice Cholendra SJB Rana questioned advocate Rudra Sharma on the provisions about House dissolution in article 76(7). “There is ‘or’ in between two clauses, why is it there,” Justice Rana asked. Advocate Sharma said that the Prime Minister can dissolve the House if he fails to obtain vote of confidence in the House.
Chief Justice Rana again asked when the PM could dissolve the House. Sharma said that if the PM failed to gain majority votes or there was no option left to the PM for government formation he could dissolve in response. “It was not such a situation now; PM used the rights he doesn’t have,” he added.
Justice Anil Kumar Sinha interrupted in between and said that the advocates need to focus on the issue of House dissolution, not on Prime Minister. The constitutional bench that comprises Chief Justice Rana and Justices Sapana Malla Pradhan, Bishwombhar Shrestha, Anil Kumar Sinha and Tej Bahadur KC is conducting the hearing on the subject.
Some 13 writ petitions were registered at the apex court challenging HoR dissolution by the President on the recommendation of the Prime Minister. The final verdict of the court will either restore the House or pave the way for the mid-term election in April and May.

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