Shiva P. Nepal 

After Prime Minister KP Oli recommended to the President to dissolve the House of Representatives and hold elections in coming April and May, there are preponderance of speculations and airing of opinions for and against from a wide range of constitutional experts and even laymen on the validity and violation of the constitution. Some of them have challenged the move in the Supreme Court. As a student of constitutional law, one cannot simply ignore the constitutional provisions behind the move.

President’s role
As per Article 61(4) of the Constitution of Nepal 2015, the main duty of the President is to abide by and protect the constitution. While doing so, the President has certain functions, duties and powers as per Article 66 (2) that—in exercising the powers or duties under clause (1), the President shall discharge the functions to be performed by him or her on recommendation and with the consent of the Council of Ministers apart from those functions specifically provided to be performed on recommendation of any other body or official under this constitution or federal law. Such recommendation and consent shall be submitted through the Prime Minister. This has clearly stated that the President cannot function ignoring the recommendation of the Prime Minister.
If the President ignores and does as per his/her wish against the recommendation of the Premier, this is against the provision of the Constitution of Nepal and there would be a large number of constitutional pundits blaming the ceremonial President for being proactive to defy the recommendation of the Prime Minister commanding the majority in the parliament. The then Maoist leaders and cadres, including the erstwhile PM Baburam Bhattarai who is criticising the President for not being proactive to refuse the recommendation of the Prime Minister, must not forget that they had severely reprehended the proactive role played by the then President Dr. Ram Baran Yadav to undermine the recommendation of the then Prime Minister Pushpa Kamal Dahal Prachanda in appointing the new Chief of the Army Staff as unconstitutional.
Article 76 (7) clearly mentions about the rights of the Prime Minister in cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the HoR and appoint a date of election within six months. Before, coming to this provision of Article 76(7), one has to look over the provision of Constitution of Council of Ministers as per 76(1) and relate the subsequent clauses accordingly. In Article 76(1), it is clear that the President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship. The subsequent clauses from (2) to (5) are provisions in cases where no party has a clear majority in the Lower House.
Therefore, the provision of Article 76 (5) cannot be separately interpreted without taking into consideration the provision of 76 (1) where it has clearly stated that there can remain the existence of the Prime Minister commanding the majority of the parliament, too. Likely than not there being the possibility of existence of the majority in the Parliament, the provision of Article 76(7) should be interpreted in a way that the Prime Minister formed as per 76 (1) has a de facto to dissolve the Parliament. Otherwise, there remains discriminatory provisions of inappropriate qualification over the privileges of the Prime Ministerial post formed between 76 (1) and the subsequent clauses under the constitution of Nepal.
It is ridiculous to deem that a Prime Minister having minority in parliament or any member of parliament claiming to be the Prime Minister failed to win the confidence of the House has the right to dissolve the parliament but a Prime Minister commanding majority. Exercising the younger federal republic administration, the parliament system of Nepal is known as the Westminsterian where the Prime Minister has privilege to dissolve parliament. The international practice of parliamentarian constitutionalism cannot go beyond the privilege granted for a Prime Minister to dissolve the parliament.
When the Prime Minister cannot dissolve the parliament for fresh mandate even after being unnecessarily curtailed by his/her party in day-to-day state affairs, there is possibility of anarchy in terms of check and balance between the executives and legislatives too. While drafting the constitution, the founding fathers of the constitution must have kept in their mind that the Prime Minister commanding majority has the right to dissolve the parliament; otherwise what should have barred them from penning down the provision explicitly in the constitution itself if they had truly wished to curb the Prime Minister commanding majority from dissolving the parliament?

Precedent
The Prime Minister who enjoys apparent majority in the House, if wishes to seek for the fresh mandate of the people, there is no way anyone else can curb him/her from doing so. The Supreme Court’s verdict on recommendation of dissolution of the House by the then PM Girija Prasad Koirala is a precedent, too. Even if the constitution has been changed, the legal system and the Supreme Court have not changed!
On top of all, as per Article 85 (1) under the Term of House of Representatives, it is stated that unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years. This is clarification that the Prime Minister has the right to recommend to the President to dissolve the parliament pursuant to the constitution and the President has to endorse the recommendation without hesitation, if he/she wants to act as per the norms of the constitution.

(The author is a lawyer and currently pursuing legal research in Canada. shivapnepal1@gmail.com)