Friday, 3 December, 2021
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OPINION

SC Prompts Oli’s Downfall



Narayan Upadhyay

In its precedent-setting July 12 judgment, the Supreme Court (SC) reinstated the dissolved House of Representatives and compelled the President to appoint a different prime minister. The apex court's ruling has brought the 'derailed constitution' back on track. The resurrected House on Sunday saw newly appointed Prime Minister Sher Bahadur Deuba winning a trust vote that will empower him to continue in his chair for one and a half years.

Composite ruling
So composite was the SC ruling that it did not grant a speck of opportunity for Oli and his hangers-on to subvert the verdict by misinterpreting Articles of the constitution. The ruling will go down as a watershed event in the annals of Nepali judiciary. However, Oli and his lackeys were quick to deride the SC's verdict for interfering in electing a prime minister. Having overturned the President and erstwhile Prime Minister Oli’s moves calling them unconstitutional, the apex court saved parliament from its premature demise and preserved constitutionalism and democracy. By doing so, the Supreme Court has also secured the judiciary's autonomy. The court verdict has put a brake on Oli's deep-seated yearning to rule the country authoritatively and unconstitutionally.
The recent political troubles, a fallout from a 'collusion' between erstwhile Prime Minister KP Sharma Oli and the incumbent President, have interfered with the spirit of our federal democratic constitution, propelling the highest court to engage in what many legal experts claim is 'judicial activism' to stop the erstwhile PM from sabotaging the constitution to remain in power.
At the centre of the apex court's July 12 verdict was Article 76 (5) that came under intense scrutiny after the dissolution of the House for the second time within six months. A chunk of unhappy UML lawmakers, led by senior leaders Madhav Kumar Nepal and Jhal Nath Khanal, supported Deuba as prime minister that drove the final nail on Oli's premiership.  This article has been mulled to allow the House to operate for its full five-year term as it envisages the House cannot be terminated on the caprices of a sitting PM. As per this Article, the HoR and legislator must explore all avenues to designate a new prime minister before taking the ultimate decision to dissolve the parliament.  The Supreme Court had vetted the potency of Article 76 (5) before foiling the connivance of Oli and the incumbent ceremonial head of the state.
The five-member constitutional bench of the apex court, headed by Chief Justice Cholendra Shumsher Rana, sent a certiorari order to the Office of the President to appoint the leader of the opposition Prime Minister within 28 hours. The bench also issued a mandamus calling for a session of the restored House to sit by July 28 and blocked the UML from issuing party-whip to its lawmakers who would later extend support to Deuba as per Article 76 (5) during the vote of confidence.
Responding to a writ-petition from 146 lawmakers, the constitutional bench rendered the Oli government invalid. Earlier, Oli had shown his sinister design to get reappointment by misinterpreting Article 76 (5), which, according to the SC ruling, bars the appointment of a sitting PM. A leader cannot become Prime Minister through sub-clauses 1, 2, 3 and 5 of Article 76.
Lacking any sense of political and public morality, Oli tried all tricks in his bag to remain in power, manipulating the sub-clauses to his advantage, which the court termed unconstitutional. The court accused the President of supporting Oli's unconstitutional overtures by ignoring her constitutional duty - she neglected Deuba's valid claim for the PM's chair and dismissed the House in the dead of night on May 22 on Oli’s unconstitutional recommendation.
A leader with a whimsical working style, many see Oli as a divisive figure. He shows no propensity to hear the slimmest of criticism within the party and outside of it. He proposed that the President dissolve the HoR after intra-party bickering with rival groups deepened to save his position, which the Head of State complied with. Ironically, Oli, who failed to get a trust vote on May 10, lost vital support of his party men when Deuba won 165 votes to win confidence in the House on Sunday.  The acceptance of Oli among his party men is plummeting as the tussle to maintain party unity has raged on. 
Never in the history of our judiciary has the apex court come up with a ruling that not only exited the sitting Prime Minister disgracefully but has also issued its judicial order to the Head of State to appoint a new PM the candidate (Deuba) who had exhibited a majority of support from the lawmakers.
Before delivering its verdict, the constitutional bench had pored over all Articles that deal with the formation of the government, dissolution of the parliament and the constitutional roles assigned to the PM, the President and the Parliament. The historic ruling has again primed the superiority of the constitution over individual ideology, selfish motives and baseless logic.

Groundbreaking verdict
Through its groundbreaking 167-page verdict, the apex court has stuck to its constitutionally assigned role - it is, as per the principle of separation of powers, the apex court can act as the ultimate interpreter of the country's constitution, the highest law in the land. The court has acted as an authentic constitutional body, having a responsibility to keep a close tab on and examine whether the separation of powers exercised by the executive, the parliament or the judiciary is in line with the federal democratic constitution of the nation. The court has a constitutional right to maintain check-and-balance against any power exercise that threatens the principle of separation of powers among all major constitutional organs.
Ultimately, following the epochal ruling, the SC justices have sent a message loud and clear: no one in the country is above the constitution. The actions of the President, the Prime Minister and all the bearers of public offices fall under the domain of the SC's judicial review. The judiciary has the jurisdiction to hold them liable if they deviate from their constitutionally assigned duties.

(Upadhyay is Deputy Executive Editor of The Rising Nepal. nara.upadhyay@gmail.com)