US embassy cable - 02KATHMANDU1146

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, Government of Nepal (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