Has Oli captured the state?Whether the Constitutional Bench upholds House dissolution or not, Oli has his tentacles all over.
Prime Minister KP Oli is unrelenting and determined not to relinquish his seat of power at any cost. He dissolved the House of Representatives on December 20 last year. Although dates for election to the House have been set for April 30 and May 10, the prime minister has neither resigned nor acknowledged that he is the head of a caretaker government. The constitutionality of the dissolution has been challenged in the country's highest court. The Constitutional Bench is hearing the case. The Election Commission is now investigating the nature of the split in the ruling Nepal Communist Party (NCP). The verdict of the Commission is critical on assigning the election symbol and party flag to one of the breakaway factions. Both sides believe that whoever wins the ‘branded’ symbol, the sun, in this quasi-legal battle, will have the psychological advantage of being the ‘official NCP’ and, thereby, positioned better to attract more votes. This, however, is a never tested hypothesis.
The demonstrations of various groups, civil society activists and political parties return to the streets of Kathmandu, and in several towns and cities, all across the country, to protest against the unconstitutional dissolution of the House. At the forefront of all these protests, squarely demanding the reinstatement of the dissolved House through a court order, is the opposition faction in the NCP led by Pushpa Kamal Dahal and Madhav Kumar Nepal. But they now confess that the protest programmes have been far less effective than generally expected. The main opposition party, Nepali Congress, is sitting on the fence; labelling the dissolution unconstitutional and protesting it but preparing itself to go to polls if the Constitutional Bench of the Supreme Court upheld the prime minister’s dissolution, paving the way for the polls.
Amidst another political crisis, a plausible conspiracy theory now engulfs the nation: Prime Minister Oli has already ‘fixed with’ all relevant actors, political and constitutional, to steer the political course according to his interest and plan. Politically, the middle-path taken by Nepali Congress President Sher Bahadur Deuba is in Oli’s interest. Deuba’s position to go to polls if the court so decided is a political endorsement and a morale booster to Oli’s decision to hold midterm polls. If in case the House got reinstated, the Oli faction (at least 80 in number) and Nepali Congress (with 60 Members of Parliament) will cross the required parliamentary majority threshold of 138. This alliance may also be useful if at all elections are held as scheduled and a hung Parliament emerges out of that.
A less debated but very complicated legal entanglement lies in providing separate identities to the two factions of the NCP. Section 33 (3) of the Political Parties Act 2017 states, ‘Notwithstanding anything mentioned elsewhere in this Section, the political party instituted under the Sub-section(2), shall not form a separate party by way of division until five years from the date of validation by the Commission as a new party’. The Sub-section (2) provides for creating a new political party by decision of the central committee of parties akin to the process adopted by the then Maoist Centre and CPN-UML that officially formed the NCP in May 2018. Prime Minister Oli seems to be banking heavily on this particular legal cushion as he expects the current leadership in the Commission to oblige him in exchange for the favour of appointing them there.
From the judiciary as well, Oli expects a favourable decision, not because of the constitutional merit of his dissolution decision but due to the structure of the Constitutional Bench now organised to hear the case, which also consists of judges with a known previous political tilt towards Oli. The refusal of the Bench to send the case to the extended full bench for hearing, though not a legal requirement, has made many legal observers apprehensive about the impartial judicial outcome on the case.
Oli is projecting himself to have absolute control over the bureaucracy and security apparatus. His tactical move not to resign from the post is meant apparently not to present himself as a weaker prime minister heading a transition government. This has also been interpreted in some political quarters as his dubious intention on holding the elections on time; instead, he would continue in power even if the polls failed to take place for whatever reason. Besides, when office-bearers that he favoured take charge of constitutional bodies, according to recent appointments by the Constitutional Council, his position as an absolute ruler is only likely to consolidate substantially.
Even if all these hypotheses of the pervasive spread of Oli’s tentacles are partially true, this indeed is a clear case of state capture. When all organs of the State, including the Head of the State, work in complicity towards fulfilling a single man’s interest, it will become increasingly difficult to remove him from power through peaceful means. This audacious campaign looks impossible to be contained immediately by divided or half-hearted political protests now ongoing, regardless of whether the court upheld the dissolution of Parliament or reinstated it. Even if the Bench stays the dissolution decision, the present constitution is unlikely to be fully back on track. Its cardinal spirit of republicanism, federalism and inclusive democracy has already been severely trampled upon, not only by Oli but a host of other actors in the past as well. There are unfinished and contentious issues, such as the conclusion of the truth and reconciliation process and making the federal structure reasonably functional.
The most excruciating of all questions now is: what happens if elections are not held in spite of the fact that the Supreme Court decided in favour of Oli’s decision to dissolve the House. As such, Oli could only be removed by yet another popular revolt. That could take a long time, followed by a fresh and prolonged bout of instability and uncertainty. The biggest toll of this all will be on the very existence of the hard-earned constitution and democratic system.