Back in courtThe world will be watching the political and legal eccentricities taking place in Nepal.
The political ball is now in the Supreme Court. But there is more than one ball to play with. As per media reports, apart from the big one thrown by Nepali Congress President Sher Bahadur Deuba, which was signed by 146 lawmakers (54 percent of the total Members of Parliament in the House), there are more than two dozen writ petitions in play. There are also writ petitions filed in favour of Prime Minister Oli.
In the first litigation, with nearly 300 lawyers lined up for the legal battle, it took nearly two months for the five presiding judges to deliver their final verdict. During the deliberations, one of the judges had to walk out due to a conflict of interest clause. Hopefully, there will be many conflicts of interest as well as interesting conflicts to observe this time. Given the intensity of the political and summer heat, no one is sure when the verdict will be delivered. Time is the only resource abundantly available in Nepal; therefore, we are habituated to making decisions at the 11th hour.
At first sight, the two litigations may look similar, with almost the same issue and the same actors and their characters. The crisis has been brought about by an intra-party conflict within the ruling communist party. However, there are significant differences between the two. In Litigation 1.0, Prime Minister Oli enjoyed some degree of legitimacy, and hence the authority to dissolve Parliament; and Madam President was spared from controversy. The opponents of Prime Minister Oli were in disarray over whether to wage battle on the streets or in the courts, and whether to prepare for elections or a court room battle. The country faced a mild degree of the first wave of the coronavirus.
Litigation 2.0 is going to be different significantly. Politics is totally polarised into two camps–Oli vs anti-Oli. We are facing a humanitarian crisis due to the second wave of the coronavirus. Oli's opponents are resolute in restoring Parliament and opposed to early elections at any cost. This is the one single reason why wishy-washy Deuba was able to line up 146 lawmakers inside the courtroom. This time, Madam President has been very much dragged into the controversy.
Let us have a look at the possible strengths and weaknesses of the disputing parties. This time, Oli will plead that he abided by the norms of the constitution to the point of exhaustion. He will also plead that he was forced to remain as prime minister under Article 76 (3) as his opponents failed to garner the required majority. Given the situation of having to choose between the devil and the deep blue sea, that is, having to call the budget session within a short span of time and needing to face a vote of confidence, there was no choice left other than to dissolve Parliament and go for fresh elections.
He will also plead his case pointing to the constitutional weirdness where neither a majority nor a minority prime minister can dissolve Parliament and seek a fresh mandate of the people; where a minority government is forced to face a vote of confidence in Parliament; and where the president's discretionary power cannot be questioned in a court of law. He will point out that in a parliamentary multi-party democracy, it is political parties that matter. He will also raise the issue of his opponents cheating the president with fake signatories. Probably, he will also claim that cheating by his opponents forced the president to annul his valid application to form the government under Article 76 (5).
He may rant about his commitment to democracy and human rights, fair elections, and the rights of the opposition. But his digression into achievements like the erection of Dharahara, completion of the Melamchi water project, construction of tunnel roads, development of digital apps or procurement of vaccines is not going to pay off in the courtroom.
In the writ petition, his opponents have argued that he skipped constitutional provisions by neither resigning from his position nor facing a constitutionally mandated vote of confidence, but recommending to the president to search for another prime minister. His absurd behaviour is clearly visible: One moment he says he is not in a position to face a floor test in Parliament as he lacks the required majority and requests the president to look for another candidate; the next moment he presents himself as a potential candidate with a cool majority of 153 votes.
Immoral acts often take place under the cloak of darkness. Any sensible mind will find it difficult to understand why things have to unfold so swiftly in the middle of the night. Oli's distaste for the reinstated Parliament is very visible from his acts of keeping it business-less and his penchant for ruling the country through ordinances.
The crux of the matter
It depends on the legal eagles how the debate will unfold inside the courtroom. However, the crux of the debate rests on deciding whether you have to proceed according to the constitutional articles on the formation of government—Articles 76 (1) through 76(5)—in sequential order or you can jump to the final Article 76 (7) where the dissolution of the House and call for early elections is permitted. In a multi-party parliamentary democracy, is it the party or the individual Member of Parliament that dominates? What is the absurdity behind forcing a minority government to seek the near-impossible vote of confidence other than prompting horse-trading and corruption?
Whatever may be the outcome of Litigation 2.0, it is definitely going to be a high noon drama where three primary actors of the law, namely the makers (legislature), executioners (executive) and interpreters (judiciary), have been simultaneously put to a public test. Remember, during Litigation 1.0, both parties to the dispute issued threats, saying it is the people, not the court, who should give the final verdict. This time the intensity is going to be even more vicious. And the whole world will be watching the political and legal eccentricities taking place in Nepal.