Nepal’s Supreme Court and Prime Minister – Analysis based on recent events
Author: Pranesh Raj S
Nepal, a beautiful and peaceful country originated with eight of the world’s ten tallest mountains including Mount Everest (the tallest point of Earth). Nepal is also called as “Roof of the world” and “A root between two stones” (indicating its presence between India and China). The famous Kathmandu being its capital and the largest city, Nepal is a country filled with green grass fields, white snow mountains, and pine forests. Nepal prides on its history of never being colonized by any other country.
Even when India was colonized by the British, Nepal had successfully evaded the pursuance of both Britain as well as China. Nepal was once the one and only Hindu country inthe world but then they announced to the world in 2007 that they will be secular. Though Nepal is a secular country, privileges are provided to Hindus who contribute about 81.34% of the total population of the country (the highest percentage of Hindus in any country throughout the world).
PRIME MINISTER AND CHIEF JUSTICE:
The Constitution of India and Nepal is similar in many cases, for example: fundamental rights like right to life, equality, freedom, communication, justice, religion, etc…, duties and even judiciary part of the constitution of Nepal are similar to ours.
Hence the Prime Minister of Nepal is the same as ours; he is the chief adviser for the President and is the chief officer of the executive unit in the Nepal government. He is in short the head of the government, a member of the House of Representatives, and is also the highest ranking federal officer within the government.
The Supreme Court is considered as the apex court of Nepal wielding the utmost powers of the Judiciary wing. The Chief Justice is the head of the Judiciary branch, Chief Judge of the Supreme Court and is also the chief administrative officer of all the judicial system.
Thus, the Prime Minister and Chief Justice’s rights, duties, and actions permitted by the constitution aresimilar to the provisions in the Indian Constitution.
ARTICLE 76 OF NEPALI CONSTITUTION:
Article 76 of the Nepali Constitution speaks about the formation of a council of ministers, their summarized contents are:
a) Article 76(1) speaks about the power vested to the President in appointing the party leader of the parliament’s majority holder as the Prime Minister and the council of ministers formed in his or her leadership.
b) Article 76(2) says if there is no individual party majority in theParliament the President shall appoint the one with majority formed by the help of others parties as the Prime Minister.
c) If a Prime Minister can’t be appointed within 30 days after election or the appointed Prime Minister fails to show vote of confidence within 30 days of his appointment then the President can appoint the leader of the majority party in the house of representative as the Prime Minister as said in Article 76(3).
d) The Prime Minister appointed under article 76(2) and 76(3) should receive the vote of confidence within 30 days under Article 76(4).
e) Article 76(5) says if the Prime Minister can’t be elected under article 76(3) of the constitution then the person willing to prove majority shall approach the President for appointment as the Prime Minister.
f) The Prime Minister appointed under article 76(5) shall do as prescribed by article 76(4) under Article 76(6).
The Former communist party minority government’s Prime Minister K. P. Sharma Oli dissolved the Parliament for the second time in five months due to lack of vote of confidence in the Federal Parliament. Several writs were filed in the Supreme Court opposing former Prime Minister Oli’s move.
Agitated as the people are suffering because of a less stable government the Supreme Court of Nepal on 12th of July, 2021 under the bench of its Chief Justice Cholendra Shamsher Rana and four other judges while investigating the writ petition filed by Sher Bahadur Deuba, the former opposition party leader has ordered the leader of the Nepali Congress party(former opposition party), The Right Honourable (formal way to call the Prime Minister of Nepal) Sher Bahadur Deuba to take the office of Prime Ministeron or before 14th of July, 2021 under the provisions mentioned under Article 76(5). The Prime minister appointed should secure a vote of confidence in parliament within 30 days under Article 76(6) of the Nepali constitution. The court has also reinstated the ministers of their former posts as requested in the writ. While taking office, four other ministers were included in the cabinet of ministers under the new government formed under Prime Minister Deuba.
The former Prime Minister Oli said the act of the Supreme Court as “improper” and the Prime Minister is not appointed by the Supreme Courtanywhere in the world. But the five member bench of the Supreme Court had already stated that the Prime Minister was ordered to be appointed only under Article 76(5) of the Nepali Constitution and not on its own, so it is not violatingany provisions of the constitution or any other law in force.
Government is created for the people and so their welfare comes first. Any act affecting the welfare of a country’s people cannot be allowed to be done even if it is legal. The Supreme Court of Nepal in order to stabilize the Government has issued this order considering the welfare of people as election cannot be held in this pandemic period and this decision is a good and innovative one as the Judiciary has played a vital role in restoring the failed executive to perform again.
When a person selected by the people as their representative thinks only about the welfare of such people then he/she may not strive for power and would have worked hard for their people’s welfare even by co-operating with opposition parties. When such welfare motive becomes the prime rationale of such representatives then oppression between parties would not happen in any situation. Thus, it can be considered that endeavor for power was more than the welfare of people in the Nepali Parliament.
1) The Constitution of Nepal .pdf – https://www.constituteproject.org/constitution/Nepal_2015.pdf
2) Sher Bahadur Deuba to be Nepal’s New prime minister orders Supreme Court - https://www.livemint.com/news/world/nepals-supreme-court-orders-appointment-of-sher-bahadur-deuba-as-prime-minister-11626076600143.html
3) Sher Bahadur Deuba sworn in as Nepal’s Prime Minister for 5th Time – https://indianexpress.com/article/world/sher-bahadur-deuba-becomes-nepals-prime-minister-for-5th-time-7402595/