Constitutional Bench

Constitution is vague and further explanation is needed: Senior Advocate of Amicus Curiae

KATHMANDU: Amicus Curiae, formed to assist the court, has begun giving its opinion on the case against the dissolution of the House of Representatives.

Senior Advocate and Former Attorney General Badri Bahadur Karki, who was the first to present his opinion in the Constitutional Court, said that the court should explain the constitution as there is ambiguity about the dissolution of the House of Representatives.

He said that the word “dissolution” was mentioned in various articles of the constitution but an explanation was needed as to who would cause the dissolution.

Stating that there is a constitutional provision not to bring a no-confidence motion for two years, Karki said that the government should be accountable to the parliament in the parliamentary system.

Senior Advocate Karki said that some issues were left out regarding the dissolution of the parliament while writing the constitution and now the court should provide an explanation. He has even said that there may be a constitutional obstacle in explaining the above.

He said, “I see great seriousness in the decision to be taken from this bench.”

I admit that we also have to resort to the courts to save the constitution. It is the parliamentary norm for the Prime Minister to work as long as he has the confidence of the parliament and to take a vote of confidence when he is not.

Karki also said that ending the investigation in the parliament will do nothing. He suggested to the bench that it would be appropriate to understand the opinion of the constitution makers as well. Otherwise, he said, everyone is using the article of the constitution to their advantage.

Karki said, “Our interpretation is that the subject and context remain the same. There is one kind of understanding of the government and the President. and another kind of understanding of others. Let’s see if the dissolution of the parliament was discussed in writing during the drafting of the constitution.” 

After Karki was asked by Judge Sapana Pradhan Malla to clarify the matter, he said it was not possible to say whether there was a possibility of forming another government without a trial in the Parliament.

He said, “If the government cannot be formed, there will be no further confirmation. In that case, the alternative is dissolution. This is a state of automatic dissolution. But, if the government was formed and the government failed, there must be an opportunity to form another government. Article 76 is based on these two principles.

Karki also said that the constitution should clarify who should dissolve the House of Representatives. He further added that the provision of recommendation by the Prime Minister and dissolution by the President is not seen in Article 85. 

He also stated that even though the constitution accepted the dissolution of the parliament in principle, there was silence about the provision to stop the dissolution.

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