DISSOLUTION OF PARLIAMENT CHALLENGED IN SUPREME

UNCLAS SECTION 01 OF 02 KATHMANDU 001146

SIPDIS

SENSITIVE

STATE FOR SA/INS
LONDON FOR POL - RIEDEL

E.O. 12958: N/A
TAGS: PGOV NP GON
SUBJECT: DISSOLUTION OF PARLIAMENT CHALLENGED IN SUPREME
COURT

REF: KATHMANDU 1005

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SUMMARY
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1. (SBU) Four cases have been filed in the Supreme Court
challenging the May 22 dissolution of the Lower House of
Parliament (Reftel). The cases will be heard June 19. Two
Constitutional experts believe that defendant Prime Minister
Sher Bahadur Deuba has the stronger case. Both cautioned,
however, that the uniqueness of this particular case, in
comparison with the three previous dissolutions since 1994,
offers some latitude for judicial interpretation that could
possibly argue for reinstatement of Parliament. End summary.

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COURT CHALLENGES
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2. (U) A total of four different groups of plaintiffs have
filed petitions in the Supreme Court challenging the May 22
dissolution of the Lower House of Parliament. The Court
ordered Prime Minister Sher Bahadur Deuba, who initiated the
dissolution, to give a written response to the petitions
(called a "show cause order") by June 17.


3. (U) One of the cases was filed by a private lawyer the
day after the dissolution on May 23. The other three
complaints (one from another private attorney; one from five
MPs from the left-wing United People's Front party; and one
from 56 Nepali Congress MPs in the just-dissolved Parliament)
were all filed on June 5. The cases will all be heard
together on June 19 by a bench composed of more than half of
the Court's 19 justices. It is estimated that the court may
take up to one month to decide the case. (Note: It is not
yet clear whether PM Deuba will be represented solely by
Attorney General Prem Bahadur Bista, or whether he will
exercise his option to have a private attorney represent him
as well. End note.)

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PLENTY OF PRECEDENTS
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4. (U) May 22 marked the fourth time the House of
Representatives, the Lower House of Parliament, has been
dissolved since 1994. In the first case, the Supreme Court
upheld the decision of then-Prime Minister G.P. Koirala,
whose Nepali Congress Party enjoyed a majority government at
the time of dissolution. The Supreme Court upheld
reinstatement of Parliament in the two subsequent cases (1995
and 1998),which were initiated by Prime Ministers in
minority governments. In the 1995 case, moreover, then-Prime
Minster Man Mohan Adhikari moved to dissolve Parliament only
after a no-confidence motion had been filed against him.

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EXPERT OPINIONS: PM LIKELY TO PREVAIL
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5. (SBU) Constitutional architects Dham Nath Dhungana (who
argued two of the previous cases before the Supreme Court)
and former Chief Secretary Tirtha Man Sakya both opined that
Prime Minister Sher Bahadur Deuba is on firmer legal ground
than any of the challengers. First, Deuba has the
Constitutional authority to ask the King to dissolve
Parliament (Article 53, Clause 4). Second, Deuba headed a
majority government at the time of dissolution, just as
Koirala did when the Supreme Court upheld his bid to dissolve
Parliament in 1994. Finally, unlike former PM Adhikari in
1995, he moved against Parliament before a no-confidence
motion was filed against him.


6. (SBU) A challenge to the current dissolution might,
however, offer significant latitude for judicial
interpretation, Dhungana speculated, because neither Deuba
nor the King followed established precedent in moving for
dissolution. In previous cases, for example, the PM had
forwarded his request for dissolution to the King via the
Council of Ministers. In the current case, Deuba appears to
have bypassed his Cabinet completely and gone straight to the
King to ask for dissolution (Reftel). The late King
Birendra, who had presided over the previous three bids for
dissolution, "consulted" with the heads of political
parties--even if only in a pro forma fashion--before moving
to dissolve. In one of the cases he also consulted with
legal authorities before making his decsion. When his
brother Gyanendra, however, announced the dissolution, it was
literally at the eleventh hour--just before midnight--without
notifying any of the political leaders of his intentions
beforehand. Both Dhungana and Sakya agree that neither the
King nor the PM is legally required to consult anyone before
moving for dissolution, and Sakya suggested the King may have
assumed the precedent set by the decision dissolving
Koirala's majority government in 1994 offered him a basis to
proceed without further consultation.

7. (SBU) Sakya also agreed the current case could offer
limited leeway for judicial interpretation. He cited the
opinion rendered by the Supreme Court in the 1995 and 1998
cases, which cautioned that to the extent possible, a Prime
Minister should seek remedies to policy impasses within
Parliament before moving for dissolution. As long as the
possibility exists to form an alternative--even a
coalition--government, Parliament should not be dissolved. A
case could be made that Deuba ignored this directive by not
attempting to form a coalition government to overcome the
deadlock within his own party over extending the emergency
(Reftel). Article 45, Clause 3 of the Constitution also
allows for the one-year extension of Parliament during a
state of emergency--another option the PM did not allow to
play out. Finally, Sakya noted that the current Chief
Justice's voting record--against the dissolution of
Parliament in 1998--could also be a factor.

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COMMENT
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8. (SBU) The Constitution stipulates the involvement of
only two people--the King and the Prime Minister--in a
decision to dissolve Parliament. Custom and practice,
however, have stipulated that the PM and/or King must make at
least a pro forma attempt to inform--if not consult--other
players, such as the Cabinet and the heads of political
parties, in the process. The eleventh-hour decision to
dissolve Parliament May 22 may not have violated the
Constitution, but it did violate many observers' notions of
accepted practices in Nepal's turbulent and divisive domestic
political scene. It will be difficult for the plaintiffs to
show that Deuba's action was against the law. They can,
however, raise difficult questions about his motivations in
this very public forum.

MALINOWSKI