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RIGHT TO DISSOLVE PARLIAMENT |
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RIGHT TO DISSOLVE PARLIAMENT |
Political Or Constitutional? In the last 12 years, only
one of five recommendations has managed to stay out of the Supreme Court By KESHAB POUDEL If Nepal's 12-year experiment with the
parliamentary system of government is any indication, the country seems to have
established a unique model for the world. The court's scrutiny seems to have been added to
the sovereign right of people to choose their representatives. Almost all recommendations made by various
prime ministers for the dissolution of the House of Representatives have been taken to the
court. In the parliamentary form of government, the prime minister has many prerogatives,
and the right to dissolve parliament is an integral one.
Michel Laver, professor of political
science at the University of Dublin's Trinity College, and Kenneth A. Shepsle, professor
of government at Harvard University, in their book "Cabinet Ministers and
Parliamentary Government", write that one of three key constitutional features of a
parliamentary democracy is that the political executive, or cabinet, derives its mandate
from - and is politically responsible to - the legislature. What makes a parliamentary democracy
democratic is that, once a legislative election has been held, the new legislature has the
power to dismiss the incumbent executive and replace it with a new one. Parliament sits
essentially as a court, passing continual judgment on the record of the executive and
continuous sentence on its future prospects. That is how citizens, indirectly, choose and
control their government. But the relationship between legislature and executive is not
one-sided. The executive typically has the authority to recommend dissolution of
parliament and is usually drawn from the parliament. Nepal has similar provisions in the
constitution, but such orders have always been challenged in court. Like in the past, an
11-member full bench of the Supreme Court headed by Chief Justice Keshav Prasad Upadhyaya
is hearing the case against the latest dissolution order. Although the constitution clearly confers
the right of dissolution to the prime minister without placing any pre-conditions, only
one dissolution order has managed to stay out of court. The four other orders were taken
to court amid highly charged political environments. 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 dissolving the House of Representatives,
specify a date, to be within six months, for new elections to the House of
Representatives. The Supreme Court in 1994 asserted that it
was within the limits of parliamentary practices for a prime minister to seek a fresh
mandate from the people. The court held that the prime minister has the authority to
recommend the dissolution of the House on political grounds, and these political grounds
cannot be evaluated by the Supreme Court on the basis of the doctrine of separation of
power, intimidating the viability of the political ground and its intensity. Then-prime
minister Girija Prasad Koirala recommended the house's dissolution when he lost a
parliamentary motion after dissidents in the ruling party stayed away from the voting. In another decision in 1995, the Supreme
Court reinstated the House of Representatives, rejecting the constitutional authority of
prime minister to dissolve the house. In 1997, the King sent prime minister Surya Bahadur
Thapa's dissolution order to the court seeking constitutional advice on whether to summon
the special session of parliament or dissolve the house. In 1998, prime minister Koirala
also recommended the dissolution of the house, but the King called a special session of
parliament. In 1999, the House of Representatives was dissolved after a special proposal
was adopted in parliament. This was only dissolution order that steered clear of
controversy. Nepal is practicing a form of government in
which parliament does not have a fixed tenure. But the tendency among politicians,
intellectuals and others is still influenced by the fixed-term model of the Rastriya
Panchayat. Whatever the international practices and trends, the country has adopted its
own form of parliamentary democracy. |
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editor: spotligh@mos.com.np |
