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COVER STORY |
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COVER STORY |
SUPREME
COURT VERDICT Through an unprecedented
unanimous verdict, the Supreme Court has ruled that the prime minister's right to dissolve
the House of Representatives is unconditional, ending six years of ambiguity and
uncertainty. The 11 judges of a special bench of the Supreme Court also refused to
entertain political questions surrounding the dissolution order, clearing the atmosphere
ahead of the November 13 election. The court has also ruled that privileged communication
between the King and the prime minister cannot fall under constitutional and legal
examination. The core message of the apex court is clear and concise: political questions
must be settled in the court of the sovereign people, not in the apex court. By KESHAB POUDEL In the jam-packed special-bench chamber on
the third floor of the Supreme Court building, Chief Justice Keshav Prasad Upadhyaya read
out the unanimous 40-page verdict dismissing petitions demanding the restoration of the
House of Representatives. The Supreme Court stated that the prime minister's right to
dissolve parliament is not conditional and that the court cannot entertain questions
relating to privileged communication between the King and the prime minister. In a society torn by dissension and
contradictions, the Supreme Court justices have produced a ray of hope on the
possibilities of consensus. Supporting all the other opinions of the 10 judges, Justice
Krishna Jung Rayamajhi wrote an additional opinion saying that every prime minister,
whether majority or minority, can equally exercise the right of dissolution under Article
54(3) of the Constitution of the Kingdom of Nepal 1990.
When Chief Justice Upadhyaya began
reading out the verdict, the atmosphere was tense in and around the court. Police were
deployed on all entry points to the court premises to prevent possible disturbances.
Visitors had to undergo tight security checks. With each page Chief Justice Upadhyaya
turned, tensions appeared to ease a few notches. Following the hour-long recitation, the
minds of people shifted from the Supreme Court to the political parties. The first unanimous decision of the Supreme
Court may be criticized by a section of politicians andconstitutional lawyers for long.
But it has injected new life into the political process by sending across loud and clear
the message that political matters are not to be settled by the court. "The dissolution of the houseis a
political issue outside the purview of the court. The apex court has the right to
interpret only those issues that are of a legal and constitutional nature. It cannot give
its verdict on political, social and economic disputes," said Chief Justice
Upadhyaya. The court said issues like whether
elections can be held in a free and fair manner, whether the country's economy can sustain
the burden of new elections, or whether it was necessary to dissolve the House of
Representatives are not matters the court should review. Politics Shifts to Parties The apex court's unanimous decision has
ended the political deadlock that had gripped the country for over two months. Dismissing
the petitioners' demand to quash Prime Minister Sher Bahadur Deuba's recommendation on May
22 to dissolve the House of Representatives and to reinstate the lower house, the court
has paved the way for new elections on November 13. In the forefront of welcoming the verdict
was Nepali Congress leader Krishna Prasad Bhattarai, who had maintained Sphinx-like
silence since the ruling party split on June 18. He expressed satisfaction over the
verdict and said he hoped it would help to unite the party. Political parties called urgent meetings of
their top policy making body and endorsed the decision of the court. Although Nepali
Congress president Girija Prasad Koirala is unhappy with the verdict, his party, too,
declared it would face the elections. "The Supreme Court's decision is
unexpected, but our party will accept it," said Arjun Narsingh KC, spokesman of
Koirala-led Congress. "Since the Nepali Congress is a democratic party with a very
long history, it does not have any hesitation in taking part in the elections. We will now
focus our attention on the elections," he said. The court's decision is likely to have a
significant influence on the divided Nepali Congress. As soon as the verdict was read out,
the Deuba faction urged all workers to prepare to face the people and hinted at possible
unity. "The court has rightly upheld the prerogative of the prime minister to
dissolve the house. It is up to the other group to decide whether they want unity or [want
to] go alone in the elections," said Home Nath Dahal, spokesman of the Deuba
Congress. The country' major political parties
welcomed the decision and accepted Deuba's challenge to face the people. Former chief
justice Biswonath Upadhyaya, however, criticized the verdict saying it distorted the
spirit of his 1995 decision that reinstated the lower house dissolved by the minority UML
government by prime minister Manmohan Adhikary. The UML, which went along with Deuba's
dissolution order saying it was the prime minister's prerogative, endorsed Supreme Court
decision. "We are ready to face the elections. The government now has to lift the
state of emergency to pave way for the election campaign," said UML general secretary
Madhav Kumar Nepal. The Rastriya Prajatantra Party (RPP), the
third largest group in the dissolved house, too, lost little time in welcoming the
verdict. "We welcome the court's verdict ," said RPP vice-president Dr. Prakash
Chandra Lohani. "We don't have any hesitation to face the people. In a democracy, it
is the people who have the final say." Nepal Sadbhavana Party, for its part, said
it was looking to the future. "We are now in a new political situation," said
party general secretary Hridayesh Tripathy. Verdict of the Court The Supreme Court clearly ruled that the
dissolution of the lower house is the prime minister's unconditional right that can be
exercised in any condition, including a state of emergency. The prime minister can go for
fresh polls any moment, as the constitution has not in any way linked the state of
emergency and the dissolution of the house. The court avoided entering the petitioners'
contention that the situation was not favorable for fresh polls, saying that was a
political decision. Article 53(4) of the constitution allows
the prime minter to recommend the dissolution of the House of Representatives and seek a
fresh popular mandate. The court also ruled that it cannot enter into the reasons the
prime minister provided the King in seeking the dissolution. On the question of
mal-intention, the court said the petitioners' arguments lacked facts to substantiate
their claim that the prime minister's move was malafide. The chief justice said the court
couldn't provide a panacea for all kinds of controversies, issues and disputes. Prime minister and King.Although one
section of the Nepali Congress, from the beginning, accused Prime Minister Deuba of
"plotting to hand over democracy to the palace," political developments have
shown that the popularly elected leader of the house is the king's best adviser. Accepting the dissolution recommendation,
King Gyanendra sent a clear message that he wants to rely on the prime minister on
political and constitutional questions. "I don't understand how Deuba handed over the
democracy to power when he convinced the King to accept his order of dissolution,"
said a constitutional lawyer. "Actually, the King's decision strengthens the prime
ministerial and democratic system." When the constitution has clearly mentioned
that the political dissolution has clearly two players - the King and prime minister - no
other institution can intervene. The prime minister has every right to recommend
dissolution and seek a fresh mandate from the sovereign people. The constitution does not
lay down any condition. The 11-member bench has cleared the confusion created by the
Supreme Court verdict of 1995. Constitutional lawyers hold the view that
the verdict gives the prime minister democratic power to discipline the party and the
opposition in parliament. It would also end the anarchy and indiscipline that have plagued
the country for the last seven years. Because of the confusion over the constitutional
articles, Nepali Congress leaders like Krishna Prasad Bhattarai and Girija Prasad Koirala
helplessly resigned from the prime ministership. The court verdict also establishes the fact
that the King cannot do any wrong, as the King dissolved the house at the recommendation
of Prime Minister Deuba. This is the right interpretation of Article 35(1) of the
constitution, which says: Except as otherwise expressly provided as to be exercised by His
Majesty or at His Majesty's discretion or on the recommendation of any institution or
official, the powers of His Majesty under this constitution shall be exercised upon the
recommendation and advice, and with the consent of the Council of Ministers. Such
recommendation, advice and consent shall be submitted through the prime minister. Separate petitions were filed by 61 MPs of
Nepali Congress and National People's Forum and four lawyers demand the restoration of the
of the house on the ground it was malafide and against the spirit of the constitution.
Chief Justice Upadhyaya constituted an 11-member special bench to hear all the petitions
together. Unanimous Decision Such a unanimous decision was not possible
in the last three cases of dissolution. Although, Supreme Court judge Krishna Jung
Rayamajhi wrote a concurrent opinion, the enforceable part of the judgment is unanimous. At a time when Nepalese society is badly
divided on various grounds, the unanimity of the Supreme Court has raised hopes of
consensus. "I don't want to comment on the decision of the court. No comment is my
comment," said senior advocate Mukunda Regmi, an architect of the petition filed on
behalf of 55 Congress MPs, and a member of the panel that drafted the constitution. Like
all the courts in the world, the Nepalese apex court has accepted the fact that the court
cannot enter the privileges communication between the King and Prime Minister. The court's
verdict has made the prime minister powerful and accountable to people. According to Article 53(4) of the
constitution, His Majesty may dissolve the House of Representatives on the recommendation
of the prime minister, His Majesty shall, when so dissolved the House of Representatives,
specify a date to be within the months, for new elections to the House of Representatives. Under the doctrine of separations of
powers, it is not within the province of the judiciary to determine political questions,
except to the extent that power deal with such question has been conferred on the courts
by express constitutional or statutory provisions. The prime minister has the power to choose
the time of dissolution within the five-year period prescribed by the Parliament Act 1991.
The power of timing is a weapon of great political importance in the hands of the
government, especially of the prime minister, says Hood Philip, an eminent British
constitutional expert. Divided Congress and United
Opposition Soon after the court verdict was read out,
the most worried politicians happened to be those of the rival Nepali Congress factions.
Although both groups claim they are capable of going to the polls alone, they realized the
challenge posed by the united communists. Regardless what members of the rival
factions of the Nepali Congress are saying in public, analysts believe the patch-up
process has already begun. "I don't think a large number of Congress members will
follow Prime Minister Deuba and Girija Prasad Koirala and commit political suicide,"
said a political analyst. "They will unite within fifteen days under certain
conditions." The Supreme Court decision has upheld the
right of the prime minister to go to the people to seek a fresh mandate and clears the
hurdle for the forthcoming elections. "Our foremost task now will be to conclude the
elections at any cost," said advocate Radheshyam Adhikary, a Nepali Congress member
of the upper house of parliament. A large number of Nepali Congress members
and supporters are waiting for Bhattarai to take up the unity drive. "We don't want
to commit political hara-kiri along with Koirala and Deuba," said a powerful member
of the Koirala-led Congress. "Kishunji has the magic to unite us and give new life to
our party." If the Nepali Congress fails to work out
some kind of unity platform, it would suffer a major defeat at the hands of united
communists. After winning the case in the court, Prime Minister Deuba now has to show
courage and resolve in initiating efforts to unite the party. The winner should have
magnanimity and wisdom in accommodating the other side. Koirala, too, has to show leadership
qualities by inviting his old party colleagues to rejuvenate the Nepali Congress. There
are many young Congress leaders who have a long future in politics and want to strengthen
the party. Many expect the decision of the court to force the warring factions to find an
amicable point for unity. "The Nepali Congress is divided like a family, and it can
be once again united," said Adhikary. Agenda of Elections Despite the clearance from the Supreme
Court, politicians have to surmount many challenges and cope with many difficulties to
hold the elections as scheduled, especially at a time when the Maoist rebels continue to
terrorize the rural population. Some see the elections as an opportunity for the Maoists
to join the national mainstream. The headlines in the days ahead will revolve around the
elections. Fed up unnecessary political debate and
perennial internal political wrangling, the people can now focus on critical national
issues as the elections near. "The Supreme Court judges have clearly shown that they
don't want to create hurdles for the elections," said a political analyst. "The
petitioners who have lost the case in the court may win the elections now. No one is the
loser; the political process has gained." The court has clearly stated that it cannot
enter matters of understanding between the King and the prime minister. The mandate of
court is that political questions should be settled through elections. The court's verdict has shown that there
are two players in the dissolution process: the recommendation of the prime minister and
the order of the king to go to the people. Now it is the turn of the people to judge the
prime minister's political judgment through the ballot box. That way, the country can put
the political process back on track. Judges Judges: Kedar Nath Upadhyaya Krishna Jung Rayamajhi Govinda Bahadur Shrestha Arbinda Nath Acharya Hari Prasad Sharma Krishna Kumar Verma Harish Chandra Upadhyaya Top Bahadur Singh Dilip Kumar Poudel Gopal Prasad Khatri Advocates On Behalf of Petitioners Senior advocate Kusum Shrestha Senior advocate Mukunda Regmi Advocate Radheshyam Adhikary Advocate Harihar Dahal Advocate Devendra Nepali Advocate Yegya Murti Banzade Advoate Hari Krishna Shrestha Advocate Dhruba Lal Advocate Keshav Pandey Advocate Lalit Basnet On Behalf of Defendants Senior advocate Moti Kaji Sthapit Senior advocate Ganesh Raj Sharma Advocate Sher Bahadur K.C Advocate Binaya Sthapit Attorney-General Prem Bahadur Bista Deputy Attorney General Nanda Bahadur
Subedi Attorney Narendra Prasad Pathak, Pushpa Raj
Koirala and Kedar Prasad Poudel 'The Nepali Congress Can Unite At Any
Moment' — RADHESHYAM ADHIKARY
RADHESHYAM ADHIKARY,
a member of the National Assembly and former president of the Nepal Bar Association,
pleaded the case on behalf of the petitioners. Adhikary, a Nepali Congress member, spoke
to SPOTLIGHT on the consequences of the Supreme Court verdict. How do you see the political
scenario after the Supreme Court verdict? It is very crucial that elections should be
held on time. If we cannot hold the elections, there is a possibility of a political
vacuum and constitutional breakdown. So there must be elections. What is the possibility of unity in
the Nepali Congress? Political negotiations are going on. Since
the division in the Nepali Congress is like a division in the family, there can be unity
at any moment. What prompts you to hold such
views? The party has not split on an ideological
basis. Nor has it split on the basis of principles. Our division is based purely on
personal differences. So there always is the possibility of unification. Who will benefit from the division
in your party? Generally speaking, the Congress split will
benefit the united communist. In the present extraordinary situation, however, one cannot
predict who will benefit. Are you aware of unity efforts
being undertaken by party leaders? Yes. Some of our friends are making efforts
to unite the party. There is no dearth of people ready to take the initiative to unite the
party. What is your reaction to the
decision of the apex court? I cannot speak about the constitutional
implications without reading the court's verdict in full. KESHAB PRASAD
UPADHYAYA The chief justice has shown
rare qualities of leadership By KESHAB POUDEL When Keshav Prasad Upadhyaya was appointed
chief justice, no one thought he was destined to pass through very† critical phases
of Nepalese history. From narrowly escaping an assassination attempt to chairing the
high-level commission to probe the Royal Palace killings to leading the Supreme Court to a
unanimous decision to quash petitions seeking the reinstatement of the House of
Representatives, Upadhyaya has performed three most important jobs in the last 12 years of
democracy with great success.
Toward the end of his career,
Upadhyaya took a decision that will have long-term implications in the constitutional
history of Nepal. His ability to bring all Supreme Court judges into a unanimous decision
is a shining story of success in a society bedevilled by dissension. Upadhyaya will have no shortage of critics,
especially among those who were hoping for the reinstatement of the House of
Representatives. His quality of leadership, however, will be recorded with prominence in
the annals of the Nepalese judiciary. His most important contribution to contemporary
Nepal is to have led the way towards putting the political process back on track. Although some politicians and lawyers have
criticized his decision on political grounds, Upadhyaya has taken a very careful course to
avoid controversy. The backing of all of his colleagues is his asset and strength. This
unanimity will also help to strengthen the institutional capability of the apex court. In all three events, Chief Justice
Upadhyaya did not show any sign of tension or exhaustion. Moments after emerging unhurt
from a Maoist ambush near Surkhet in 2001, Upadhyaya stood up† as if he was coming
out of normal consultations. His latest success in convincing all 10
judges of the bench and coming out with an almost-unanimous decision to quash the
petitions demanding the reinstatement of the House of Representatives mirrors his skills
as a team leader. In the four dissolution cases that have
reach the court over the last nine years, Upadhyaya is the first chief justice to have
secured support from all his colleagues. "This indicates his managerial skills and
quality to work with their colleagues," said a lawyer. In the first petition filed against the
dissolution order by then-prime minister Girija Prasad Koirala, eight judges ruled in
favor of quashing the petition while three issued an order to reinstate the house. In the second petition filed in 1995
against the dissolution order by then-prime minister Manmohan Adhikary, the judges were
similarly divided. Eight judges, including chief justice Biswonath Upadhyaya, ordered the
reinstatement of the house and while three judges quashed the petition. In the 1997, when
King Birendra sought the opinion of the court, five judges advised the monarch to call the
special session of the House of Representatives instead of accepting the dissolution
recommendation of then-prime minister Surya Bahadur Thapa. Upadhyaya, who did his LLM from the United
Kingdom, has always avoided confrontation and controversy and has focused on the merits of
the issue. In his recent historic decision, Chief Justice Upadhyaya has provided a
philosophical defense of the right of prime minister to call fresh elections. This
decision has settled the seven-year-old disputed over the right of the prime minister. Born in Siraha district, Upadhyaya is known
for both his humbleness and friendliness. These attributes may explain how he was able to
convince his colleagues on the bench. Among the five Supreme Court chief justices since
the restoration of democracy - the other four being Bishwanath Upadhyaya, Trilok Pratap
Rana, Om Bhakta Shrestha and Mohan Raj Sharma - Upadhyaya is the only person who has
receive the unanimous backing of his colleagues. In a society that stands badly divided,
this unanimity serves as a beacon of hope. |
Send your feedback to the
editor: spotligh@mos.com.np |
