The Blurred Line Between Law and Politics: The Supreme Court of Nepal Blocks a Parliamentary Dissolution

—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

On 23 February 2021, the Constitutional Bench of the Supreme Court of Nepal handed down its long-awaited judgment in the controversial case on the constitutionality of the House of Representatives’ dissolution by Prime Minister K.P. Oli on 20 December 2020.[1] The Prime Minister had advised the President of the Republic to dissolve the House due to infighting within his own party, the Nepal Communist Party (NCP), and claimed that it was impossible for him to govern. The NCP was created in May 2018 as a result of the merger of the Communist Party of Nepal (United-Marxist Leninist) led by Oli, and the Communist Party of Nepal (Maoist Centre) led by Pushpa Kamal Dahal, aka “Prachanda”, the former Maoist rebel. Allegedly, Prime Minister Oli decided to dissolve the House to pre-empt a no-confidence motion about to be tabled by the rival faction in his party. He argued that since the NCP controlled the majority of seats in the Lower House, a new government could not be formed and a fresh electoral mandate was the only way out of the political impasse. The Supreme Court rejected that claim.

In the midst of street protests across the country and an embittered public debate on the move by the Prime Minister, two weeks ago the five judges on the Constitutional Bench rendered a unanimous decision on the thirteen petitions challenging the legality of the dissolution. The Supreme Court boldly ruled the dissolution of the Lower House of the Nepali Parliament unconstitutional and ordered its restoration by March 8 by way of mandamus. The questions that the Court had to answer were (1) whether it was appropriate for the Court to pass judgement on a controversy of high political content such as the advice given by the Prime Minister to the President to dissolve the House of Representatives; (2) whether the dissolution of the House was in accordance with Nepal’s constitution on the basis of the nature and principles of a parliamentary system and the practices developed in Nepal and in other countries that have adopted a parliamentary system; (3) whether the dissolution of the House under Articles 76 and 85 of the 2015 Constitution was indeed constitutional; (4) whether the advice by the Prime Minister to the President to dissolve the House was given in bad faith; and (5) whether it was appropriate to issue the order requested by the petitioners.

The Constitutional Bench strongly reaffirmed the jurisdiction of the Supreme Court in all constitutional matters and its role in protecting the rule of law in response to the government’s argument that the issue under review was purely of a political nature. The judgment cited a long string of precedents under the previous 1990 Constitution in which the Supreme Court of Nepal had already ruled on the dissolution of the House of Representatives by the Prime Minister. The Court also rejected the government’s submission that Nepal’s constitutional position could be interpreted by using precedents from Westminster-derived systems in which the dissolution of the legislature by the executive has been traditionally based on royal prerogative powers and unwritten constitutional conventions, often with disastrous consequences like in 1950s Pakistan.[2] The judgment also emphasised the key constitutional principle of popular sovereignty in Nepal and the fact that the country features a written constitution. In particular, the Bench highlighted that the power to dissolve the legislature must be based on––and exercised according to––rules expressly stated in the constitution. As a result, the Court rendered a literal interpretation of the procedural requirements under Article 76 with respect to the appointment of the Prime Minister and government formation. It then concluded that, in the situation at hand, there was still the possibility to form a government and therefore rejected the Prime Minister’s claim that the dissolution was a measure of last resort.

This is not the first judgment by the Supreme Court of Nepal on intractable political controversies or the dissolution of the legislature by the executive. Since 1990, radical constitutional changes expanding the position and powers of the Supreme Court of Nepal have encouraged a much greater amount of litigation. In particular, the Court became embroiled in a number of cases pertaining to the dissolution of Parliament’s Lower House.[3] In these cases, the Supreme Court struggled to articulate a consistent ‘political question’ doctrine and appeared to be making its decision in a partisan manner according to the political party at the helm of government. In the last of these cases, the Supreme Court upheld the validity of the dissolution by the Prime Minister over its inability to secure an extension of the state of emergency at the height of the civil war in 2002.[4] In that instance, the dissolution of the House and its judicial validation re-opened the door to monarchical autocracy. These cases have provoked questions about whether the courts are the most appropriate venue to resolve political controversies, as well as allegations of an increasing politicisation of the judiciary.[5]

Nepal’s higher judiciary is by no means alone in facing allegations of instigating a pernicious politicisation of the law. There is an extensive critique of the greater role that courts have recently acquired across the world in academia, policy circles, and on both the left and the right of the political spectrum. However, the realm of public law is itself quintessentially political, and the practice of constitutionalism invariably blurs the lines between law and politics. The fundamental distinction to be drawn here is between the political and the partisan. Entrenched constitutions with extensive fundamental rights and broad judicial review powers very often lead to a much greater constitutional role of the judiciary.

In this scenario, a more pertinent question seems to be in what manner do courts choose to occupy that wider constitutional space? In Nepal, the Supreme Court in this recent case has demonstrated no deference to the executive. It has also clearly rejected a blanket use of the ‘doctrine of necessity’ deployed in earlier litigation on the constitutional validity of the amendments extending the term of the first Constituent Assembly (2010-2012).[6] Last month, in what appears perhaps as a jurisprudentially unadventurous and procedurally pedantic judgment, the Constitutional Bench strived to be faithful to the text of the recently promulgated constitution and to be sensitive to the local context in which the document is embedded. These appear to be the actions of a Court that has grown to occupy its constitutional space with comfort, resolve, and courage.

Suggested citation: Mara Malagodi, The Blurred Line Between Law and Politics: The Supreme Court of Nepal Blocks a Parliamentary Dissolution, Int’l J. Const. L. Blog, Mar. 10, 2021, at: http://www.iconnectblog.com/2021/03/the-blurred-line-between-law-and-politics-the-supreme-court-of-nepal-blocks-a-parliamentary-dissolution/

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[1] Supreme Court of Nepal, Constitutional Bench, Writ N. 077-WC-0028. The full decision is expected to be published in a couple of months. In the meantime, the summary decision (in Nepali) is available here: http://supremecourt.gov.np/web/assets/downloads/judgements/077-WC-0028_समेत.pdf

[2] For a more detailed discussion see my article ‘Dominion status and the origins of authoritarianism in Pakistan’, International Journal of Constitutional Law 17:4 (October 2019), 1235-1257.

[3] Hari Prasad Nepal v. Prime Minister, NKP, 2052/1994, Vol. 37, N. 1, 88; Ravi Raj Bhandari v. Prime Minister, Supreme Court Bulletin, 2052/1995, 4, Bhadra 16-31; House Dissolution (N. 3) Case, 6 Sarvocca Adalat Bulletin, 2054/1996, 1, Magh 16-30.

[4] ‘Nepal court upholds Parliament’s dissolution’ The Hindu (Chennai, 7 August 2002), http://www.thehindu.com/2002/08/07/stories/2002080703461200.htm

[5] A more detailed analysis is available in my forthcoming chapter ‘Nepal’ in the Oxford Handbook of Constitutional Law in Asia edited by David Law, Holning Lau, and Alex Schwartz for Oxford University Press.

[6] A more detailed analysis is available in my forthcoming chapter ‘Limiting constituent power? Unconstitutional constitutional amendments and time-bound constitution making in Nepal’ in the volume The Law and Politics of Unconstitutional Constitutional Amendments in Asia edited by Rehan Abeyratne and Ngoc Son Bui for Routledge.