CJ asks what if court reinstates Parliament, won’t govt formed again under Article 76(1)?

Advocates argue confidence of HoR should have been taken

Khabarhub

January 19, 2021

4 MIN READ

CJ asks what if court reinstates Parliament, won’t govt formed again under Article 76(1)?

A session of the hearing at the Supreme Court.

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KATHMANDU: During Tuesday’s hearing on the case related to the dissolution of the House of Representatives(HoR), Chief Justice Cholendra Shumsher Rana have questioned the writ petitioners what if the house is reinstated and the government is to be formed under Article 76(1).

While hearing the arguments presented by the advocates representing the writ petitioners, CJ Rana asked what kind of constitutional provisions are there for the formation of the government provided the parliament is reinstated as demanded by the petitioners.

Responding to the claim of advocate Harka Bahadur Rawal that the constitution does not grant the Prime Minister the right to dissolve the HoR, CJ Rana who heads the Constitutional Bench asked where the majority government should go to seek the vote of confidence.

Advocate Rawal replied that he should go to the parliament. Then CJ Rana inquired whether the majority government also should seek the confidence in the parliament.

Again another justice in the bench asked what if the PM does not get a vote of confidence in the parliament but gets confidence in the parliamentary party and CJ Rana also suggested Rawal to focus on that.

Advocate Rawal replied that in that situation the Prime Minister can resign and the parliamentary party gets another leader or proposes a new person for the post.

Chief Justice had also argued that as long as the government formed as per Article 76(1) was there, there was no space for the formation of the government as per clauses (2), (3), or (5) of the same article.

Advocate Rudra Sharma also cited that the Prime Minister has not been the prerogative of dissolving the parliament.

During the hearing, the Constitutional Bench asked the advocates not to repeat the arguments related to the prerogative as it was already discussed.

On Tuesday five more advocates of the writ petitioner’s side participated in the hearing.

Pleading on behalf of the petitioners, Advocate Rudra Sharma said since the executive needs to take the legislative into confidence, the Prime Minister was not given special powers to dissolve the lower house of the parliament.

Likewise, advocate Harka Bahadur Rawal argued that the Prime Minister cannot dissolve the house when the latter has been providing all necessary support to the head of the executive.

Another advocate Shiva Kumar Yadav said the election was held for a five-year term and hence could not be repeated in three and half years. Advocate Sher Bahadur Dhungana demanded that the dissolution should be annulled as it was against the law, and was unconstitutional.

Senior advocate Dr. Chandra Kanta Gywali began to comment that the debate on whether the matter is constitutional or political should be looked at from the perspective of the Constitution. He will continue his arguments tomorrow.

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