With the ending of grueling court deliberations, the Constitutional Bench is expected to deliver its verdict on July 12. Compared to the earlier case on House dissolution, the on-going case is far more complex and complicated. Even the four amicus curiae invited to have their impartial, independent and professional views came up with a divided opinion—two supporting and remaining two opposing House dissolution.
In the last case on House dissolution, legal deliberations revolved around the constitutionality of the PM’s decision: Whether a PM with a clear majority can or cannot dissolve the House. Nearly after two months of court deliberations, the court overturned the Prime Minister’s decision and gave its verdict stating that as long as there exists an option to form another government in the House, the Prime Minister cannot dissolve it.
However, this time, the centrality of the debate revolved around the process leading to the dissolution of the House. Can a prime minister, who has neither resigned from his post nor secured the confidence vote in the House, recommend dissolving the House? To be specific, can a government formed under Article 76(2) which could not secure confidence voting under Article 76(4), which got transformed into a government under Article 76(3), decline to secure confidence voting, pave the way to form a government under Article 76(5)? And when the President invalidated the application calls to form a government under Article 76(5), can the PM recommend dissolving the House?
At a surface level, it gives an impression that the centrality of the court battle revolved around the PM’s decision. However, in reality, the focus is very much on the constitutionality of power exercised by the President. Either by design or default, the President is “hand in glove” with the Prime Minister. The Bench has to answer this question: Does the President enjoy discretionary power to invalidate applications or not to appoint the Prime Minister under Article 76(5)?
Besides this, the judges also have to speak about the pandemic situation in their verdict. Earlier, they spoke about “financial burden of elections to the general public”. Definitely, the pandemic situation is of greater concern than financial constraints in holding elections. What if the court endorses the PM’s decision and due to the pandemic situation, the elections cannot be held on schedule? We are basically into a political vacuum. In the absence of the elections, the tenure of the President and her men may be extended for a while but political fallouts may be serious and enduring.
Listening to the defendant lawyers, it gives an impression that they are more occupied with saving the chair of the President than that of the Prime Minister. They are vociferously arguing that Article 76(5) gives discretionary power to the President and it cannot be questioned in the court of law. If we have conceived a ceremonial President in the Constitution then the verdict is going to leave a far-reaching impact on the constitutional interpretation of roles, responsibilities and power of the President. In a response to the show-cause notice issued by the Bench, even PM Oli has defended the acts of the President, saying the onus rests on him, not on the President. In a public meeting, he did not fail to criticize his opponents saying, “There is a kind of competition going around to defame the President”. Meanwhile, advisors of the President are publicly defending her position. There is even a subtle issue of threat: What if the President refuses to abide by court order?
However, the lawyers representing the plaintiffs have not failed to suggest a possible impeachment motion against the President. One can fairly imagine how we have fallen into a situation of disgrace.
What if the court endorses the PM’s decision and due to a pandemic situation the elections cannot be held on schedule? In the absence of the elections, the tenure of the President and her men may be extended for a while but political fallouts may be serious.
Basically, the Madam President is squeezed from two ends. First, she endorsed the recommendation to dissolve the House from a PM, who had neither secured mandatory confidence voting in the House nor resigned from his position. He simply paved the way to form another government under Article 76(5). Second, she invalidated application calls for the appointment of the Prime Minister under Article 76(5), citing overlapping claims by 38 MPs. The invalidation of the applications triggered several questions. They range from “identification of the grounds for invalidation” to “the President discriminating the MPs on party affiliations” to “appropriate venue for verifying the signatures of the MPs”. It is not just the outcome of the President’s actions, that is, immediate and blank endorsement of the PM’s decisions to dissolve parliament and invalidation of applications. Questions were also raised over the way she took the decision, that is, decision taken in haste and, at the middle of the night, without consulting the Speaker and the major political parties in opposition.
Ever since being elected to the President, Bidya Devi Bhandari, the first female president of the federal democratic republic Nepal, has been dragged into controversy one after another—starting from her lavish style of living to becoming a mere “rubber stamp” of the PM and Oli faction of CPN-UML. Blaming the patriarchy is one thing, nurturing female leadership is totally another. Post republic, Nepal has seen a female President, a female Chief Justice, a female Speaker and even a female leadership in the private sector business. The question is how have we fared under their leadership? I leave the question to the readers.
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