Justice Sapana Pradhan Malla has asked Attorney General Agni Kharel where the government derived the rights to dissolve the the House of Representatives (HoR) from.
Justice Malla asked the question when Kharel was explaining the Article 76 to answer the question of Justice Anil Sinha about whether the current government is a majority government or not.
Pointing that the then CPN-UML and CPN (Maoist Center) had contested the general election as two separate parties, Justice Sinha told Kharel that the Nepal Gazette said the government was formed as per the Article 76(2) of Constitution.
"If there is not a clear majority of any party according to clause (1), the President shall appoint as Prime Minister the member of the House of Representatives who can have the majority with the support of two or more political parties represented in the House of Representatives," reads Article 76 (2) of the Constitution.
Justice Sinha reminded Kharel, who was pleading in support of the House dissolution, that the two parties were unified only after KP Sharma Oli was chosen the prime minister (PM).
Oli was sworn in as PM on February 15, 2018 but a joint parliamentary party meeting of the two parties elected him the parliamentary party leader only on February 17.
"The Cabinet decision of December 20 states 'I in capacity of the leader of the party with majority (was elected) on 2018-02-15 by President," Justice Sinha pointed. "What is the reason to mention in the Cabinet decision that the parties had unified on 2018-02-15 and he was elected in capacity of the leader of the party with majority at the time? Do clarify."
Responding to Justice Sinha's question Kharel said the government was transformed into one formed as per the Article 76(1) after party unification even though the PM was appointed as per 76(2). "That has been accepted even by the Election Commission. It is recognized as it is in accordance to the law about political parties." Kharel argued. "It has not been written in the Constitution or law how it is transformed after unification but that it was transformed is fact-based. Writ petitioners have also accepted that."
Justice Malla, who is in the five-strong constitutional bench headed by Chief Justice (CJ) Cholendra Shumsher Rana along with Justice Sinha, asked Kharel three questions when he was explaining the provisions about appointment of the PM.
"Where has the PM derived the rights to use Article 76(7) of the Constitution?" was her first question. She then asked whether there was a situation to dissolve the HoR or not. Her third question asked whether the PM should face the House or not.
Kharel said he will answer all three questions. "The provisions of Articles 36(1) and 42 of the Constitution of 1990 have been merged in Article 76 of the current Constitution. The then Constitution had the provision about minority government in Article 42 while it is in 76(3) now. The PM appointed as per those provisions then had dissolved the House as per Article 53(4). I will come to whether the situation is so now or not," Kharel stated.
