A petition seeking writs of certiorari and mandamus was filed a few days back in the Supreme Court by the constitutionally elected members of the House of Representatives (“Parliament“) including Sher Bahadur Deuba against the President’s decision to dissolve the Parliament and call for mid-term elections.
Prime Minister KP Sharma Oli made the move to dissolve the Parliament back in December, 2020, after facing a rise of dissatisfaction from his political opponents. The Supreme Court overturned this decision in February 2021, and reinstated the House.
The Prime Minister then sought for a confidence motion on May 10, 2021, which he lost after failing to get the required number of votes from the members of Parliament.
The President then called for parties to form a government by May 13 and yet again KP Oli was sworn in as Prime Minister of Nepal as he led the largest party in the Parliament. However, in a seemingly impossible situation for KP Oli to secure the vote of confidence in the Parliament, the President called for members of the Parliament to claim stakes for the government.
Sher Bahadur Deuba, the leader of the opposition Congress Party had staked a claim to form a government with support from 149 MPs. A counter claim from the incumbent PM Oli followed asserting that he has support from 153 MPs. The claim of overlapping votes in a Parliament that has a total of 275 MPs led to the President dissolving the Parliament and an announcement of midterm elections for November 12 and 19.
What is a writ?
A writ contains a written order instructing someone to do something or to stop doing something. It’s a formal order or constitutional remedy for the people issued by a court. A petition is issued by the people in the form of an application filed before a court, requesting to issue a specific writ.
A (writ of) mandamus (परमादेश) is an order from a court to a government official directing them to perform their official duties properly or to correct a misuse of discretionary power.
Similarly, a (writ of) certiorari (उत्प्रेषण) is a court procedure for obtaining judicial review of a decision of a lower court or a government agency.
What do the petitioners claim?
When the President on the recommendation of the Prime Minister dissolved the Parliament on 21st May and appointed the dates for re-election to be carried out in two phases, a writ petition was filed in SC. The petitioners claim the aforementioned decision of the Honorable President to be unconstitutional pursuant to Article 46 (Right to Constitutional Remedies), 133(2) (3) (Jurisdiction of Supreme Court) and 137 (Formation of Constitutional Bench) of the Constitution. Therefore, they have petitioned to the Honorable Supreme Court to declare this decision to be void ab initio by the order of certiorari and to reinstate the parliament by an order of mandamus. The petitioners have also asked that Sher Bahadur Deuba be appointed as the Prime Minister.
The petitioners argue that the decision of the Prime Minister and President is against the rule of law and claim the following remedies:
- The President’s decision of withholding Sher Bahadur Deuba’s appointment as the Prime Minister of Nepal on the grounds of ‘insufficient claim’ to be declared unconstitutional and illegal.
- The dissolution of the Parliament by the President on the recommendation of the Prime Minister led the Council of Ministers to be declared unconstitutional and unlawful.
- To reinstate the Parliament dissolved in an unconstitutional manner.
- To appoint Sher Bahadur Deuba as the Prime Minister of Nepal on the basis of Article 76(5) of the Constitution.
What does the Constitution say?
According to Article 76 of the Constitution of Nepal, the President shall appoint the parliamentary party leader of a political party with a clear majority in the Parliament as the Prime Minister. If there is no clear majority of any party in the Parliament then any member of the Parliament who has the support of two or more political parties represented in the Parliament shall be appointed as Prime Minister. The PM so appointed should secure vote of confidence in the Parliament within 30 days.
If the aforementioned condition is not satisfied then the President shall appoint the leader of the party with the highest number of members in the Parliament as the Prime Minister provided that they are able to secure a vote of confidence in the Parliament within 30 days. If none of the aforementioned conditions suffice the President ‘shall’ appoint a member of the Parliament who presents sufficient grounds that they ‘may’ secure a vote of confidence in the Parliament within 30 days as Prime Minister. If the aforementioned condition also fails only then dissolution of the Parliament remains as the ultimatum and re-election is to be carried out within 6 months.
How is the petition relevant to us?
The petition, the Constitution, and the political affairs are absolutely relevant to us because all that it is because of the citizen and for the citizen. The constitution is not merely a legal document or a set of rules, it is the basic norms of civilization and a reflection of society at large. ‘Constitutionalism’ is the belief, frequently identified with John Locke’s political philosophies and the founding fathers of the United States, that government can and should be constitutionally restricted in its powers, and that the government’s authority or legitimacy is contingent on the government adhering to these limits. The whole idea of a constitution is inherently to limit the legitimate powers of the government.
The Constitution was supposed to bind and constrain politics but the ‘constitutional crisis’ arose in the case of Nepal as a result of the political misuse of the constitutional provisions. With its directly elected Members, the House of Representatives has been characterized by the very genesis of Nepali democracy, reflecting citizens’ public opinion and their will. The parliamentary body has a defined lifetime and is naturally dissolved at the end of its term. With the Parliament being prematurely ended, decision-making on controversial matters requiring early intervention is further delayed. Around two dozen letters will lapse and their implementation processes will stop until the house resumes implying that the resources, expenditure, and skills spent on proposed legislations will also be wasted. This will directly impact every Nepali citizen.
The upholding of the Constitution is the victory of people over governments; the triumph of common individuals over powerful political organizations. The dissolving of the Parliament should not be the last resort because fresh elections puts the monetary burden on the people as elections are carried out on taxpayers’ money and it is not a good utilization of budget especially in the case of Nepal where political instability has been the norm. Thus, other avenues must be explored before succumbing to the last resort.
The writ has now been referred to the constitutional bench headed by the Chief Justice of Nepal Cholendra Shumsher JB Rana and now it is to be seen how the Court will decide upon the matter.