While Supreme Court deliberations on the constitutionality of House dissolution goes on, the Election Commission is preparing for midterm polls in two phases on April 30 and May 10.

But at the same time, it also has to decide on which of the two factions of the Nepal Communist Party has a legitimate claim to the party.

The faction led by party chair and Prime Minister KP Sharma Oli on Tuesday informed the Election Commission that its Central Committee had been expanded to make it 1,199-member with the addition of 556 members now and with the provision of adding 197 members in the future.

When formed in May 2018, the Nepal Communist Party (NCP) had notified the poll body that its Central Committee was 441-strong. Five members were added later.

“The main objective of the Oli faction to enlarge the Central Committee was to show it has a majority in case of a potential dispute of legitimacy,” said Hari Roka, a political analyst.

As per the current provisions in the Political Parties Act, a faction must show the signatures of 40 percent of its Central Committee members to claim the party name or register a new party.

But the faction led by Pushpa Kamal Dahal, which on Tuesday declared Madhav Kumar Nepal as the other party chair, on Wednesday informed the Election Commission that Oli has already been removed as the party chair. The Dahal faction said that it has more than 40 percent of Central Committee members [out of 441] to claim the Nepal Communist Party.

“We have submitted the signatures of 290 Central Committee members,” said Surendra Pandey, a leader of the Dahal-Nepal faction. “We have the support of 315 Central Committee members. Some Central Committee members could not attend Tuesday’s meeting, so we could not include their signatures.”

According to the Political Parties Act-2017, the commission must give a decision within 90 days.

“The commission will verify the signatures and follow the remaining due process to decide on the dispute based on the existing legal provisions,” Raj Kumar Shrestha, spokesperson for the commission, told the Post.

Despite knowing that he is in the minority in the party, Oli’s move is aimed at winning legitimacy, according to analysts.

“Oli does not want to be seen as the one who split the party so that he can have the sympathy of party cadres,” said Lok Raj Baral, a political scientist. “His faction enlarged the Central Committee instead of taking action against the party leaders from the other faction.”

Questions will also arise about whether Oli has the right to expand the Central Committee.

A legal expert who has worked at the commission told the Post that the commission can recognise the enlargement only if it was done by a majority vote of the existing Central Committee or on the basis of the party statute that authorises Oli, as a chair of the party, to nominate new members to its Central Committee.

“The Election Commission does not recognise an enlarged Central Committee as long as it has not been decided either by a majority of Central Committee members or by the chairperson authorised by the party statute,” said the legal expert who spoke on condition of anonymity. “It depends on what the party statute has provisions on decision-making.”

But according to the interim statute, prepared by the Nepal Communist Party after it was formed in May 2018, the chair does not have any authority to nominate new members to the Central Committee. As per Clause (E 17) of the statute, the Central Committee can nominate a maximum 10 percent of the total Central Committee members as new members and that too only from a group that comes to merge with the party or joins the party.

Clause 60 of the statute authorises the Central Committee to take decisions based on the majority vote if no consensus is reached.

“If the party’s statute does not allow the chairperson to nominate the new Central Committee members, Oli’s enlargement of the committee cannot get recognition,” said senior advocate Shambhu Thapa.

According to Thapa, the election authority has set a precedent in the dispute regarding official status of any party after a faction claimed legitimacy based on the majority in the Central Committee before the dispute arose.

In 2002, there was a dispute over the legitimacy between two factions of the Nepali Congress, one led by late Girija Prasad Koirala and the other by current Nepali Congress President Sher Bahadur Dueba. But the Election Commission gave legitimacy to the Koirala-led faction because it had the majority in the Central Committee.

Deuba later established Nepali Congress (Democratic) which in 2007 merged with the parent party.

“One cannot claim majority by enlarging the Central Committee after the dispute arose,” Thapa said, who has overseen cases related to legitimacy disputes within political parties.

Though the Nepal Communist Party was headed for a split with its two chairs–Oli and Dahal–locked into a battle for months, it finally happened on Tuesday, as both factions held their own meetings of the Central Committee. Just as the Dahal-led faction’s Standing Committee meeting took a decision to take disciplinary action against Oli, the latter at the meeting of his own faction enlarged the Central Committee, thereby giving ample ground for the poll body to look into.

The Dahal faction’s Central Committee meeting later in the afternoon ousted Oli as the party chair

The time is important, according to Radheshyam Adhikari, a lawyer and a National Assembly member from the Nepali Congress.

The question here is whether the dispute arose before or after the Oli faction enlarged the Central Committee, he said.

“The Oli faction may claim that the dispute arose in the party only after the Central Committee was enlarged,” Adhikari told the Post. “If the commission recognises that the dispute arose after the Oli faction enlarged the Central Committee, there is a possibility that the Oli faction could get recognition as the establishment faction.”

Subas Nembang, a Standing Committee member from the Oli faction, on Tuesday claimed that the decision of the Oli-led faction was official.

“Now onwards, the party will have a Central Committee with added members,” he told the Post.

As per Section 44 (1) of the Political Parties Act-2017, the faction that claims to be the establishment faction must substantiate the claim, among other things, through the signatures of at least 40 percent members of the Central Committee within 30 days of the dispute in the party.

According to the Act, after hearing the views of rival factions, the commission will encourage them to go for consensus, and if no consensus is reached, it will give legitimacy to one faction’s decision or the faction itself as the establishment, based on the evidence submitted.

If such recognition cannot be given to one faction, the commission will recognise the faction which could show the majority in the Central Committee before the claims were made.

The officially recognised faction is entitled to stay as the parent party while the other faction can register a new party, according to Section 44 (6) of the Political Parties Act.

“But based on the tradition, the commission should have legitimised the list of Central Committee members sent before the latest dispute surfaced,” Adhikari told the Post.

If the Oli faction was considered to have secured a majority with an enlarged Central Committee, he said, the other faction also has the option to enlarge its Central Committee to, say, over 2,000 by unilaterally increasing the number of members.

And as per Section 33(2) of the Political Parties Act, it is necessary for a faction to garner the support of 40 percent Central Committee members and the support of equivalent members of federal parliament (House of Representatives and the National Assembly) to register a new party.

"In fact, the Oli faction appears to be in a vulnerable position for splitting the party and the enlargement of the Central Committee is aimed at protecting the political future of the faction," said Roka.

There is also the question of whether it will be enough for one faction to split the party in the absence of a parliamentary party as the Political Parties Act-2017 has made it mandatory that the faction willing to split the party needs to secure the support of at least 40 percent party members from both the federal parliament (lower and upper houses) and the Central Committee.

Adhikari said that based on the claims of Dahal and Oli factions, it would be hard for the Oli faction even to split the party as per the existing law, until the Oli faction is recognised as the establishment faction by the commission.

“The Oli faction has the option to change the provision of the law by introducing an ordinance, allowing it to split the party by making provision that the party can be split even without the presence of the Parliamentary Party and without the support of 40 percent members of the Central Committee,” he said.

The legitimate Nepal Communist Party will also get the sun as its election symbol, which is currently recognised by the Election Commission as the symbol of the Nepal Communist Party (NCP).

Sun was earlier the election symbol of the CPN-UML before it merged with the Dahal-led Communist Party of Nepal (Maoist Centre) in May 2018.

The UML contested all the elections after the restoration of democracy in 1990 with this symbol and is one of the most recognised election symbols.

“It is a popular election symbol,” said political scientist Baral. “The former UML has been winning the elections with this symbol for long. Therefore, both factions want to retain this symbol.”

Ballot papers cannot be printed without the decision on which party gets the election symbol. Parties themselves will also have to seek support on the basis of the symbol they get.

“Election is a political game and politicians are the players. Unless the players are ready, the game cannot be played,” said Bhojraj Pokharel, former chief election commissioner. “Without the resolution of the dispute, the parties won’t be ready for elections. Holding elections becomes easier once the dispute is settled as soon as possible.”

According to lawyers and former commission officials, while the legitimacy of the party is one thing, there are bigger concerns too.

“The credibility of the commission is also at stake,” Pokharel told the Post. “Therefore, it should take decisions as per the letter and spirit of the laws governing dispute settlement in the political parties.”

For Adhikari, the Congress leader and member of the National Assembly, if the commission does not take a right decision, it will not be able to hold the elections set for April and May next year.

“If the commission loses its credibility, it cannot hold the elections,” he said.