The Nepal Communist Party has been practically cleaved in two–but technically, it is still one.

It is the Election Commission that has the final say on a political party splitting up based on its interpretation of Political Parties Act-2017. But the commission says the law has not been followed for a formal split.

After Prime Minister KP Sharma Oli recommended the dissolution of the House of Representatives on December 20, the two factions of the party—one led by Oli and the other by Pushpa Kamal Dahal and Madhav Kumar Nepal—have been claiming that theirs is the legitimate party.

Both factions have been given the deadline of Wednesday, to stake their claim to legitimacy with the necessary paperwork.

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

Even though the Dahal-Nepal faction wrote to the commission demanding legitimacy of representing the party, the commission has said that it failed to follow the due procedure.

According to the commission, neither has the faction led by Oli made any claim for legitimacy by following the due procedure.

“Nobody has claimed the legitimacy arguing that they are splitting,” said Chief Election Commissioner Dinesh Thapaliya. “So far both sides have only claimed that certain leaders have been removed from certain responsibilities.”

Two days after the House was dissolved, both the factions on December 22 held meetings of the Central Committee of their factions.

Instead of making claims for legitimacy by following the due procedure, both factions submitted the details of the decisions taken by the party’s ‘Central Committee’ meetings without the presence of the leaders from the other faction.

The Oli faction soon after the dissolution announcement informed the Election Commission that the Central Committee had been expanded and now had 1,199 members, adding 556 members and with the provision of adding another 197 more in future.

The Dahal-Nepal faction, on the other hand, declared Madhav Kumar Nepal as a party chair and informed the Election Commission that Oli had been removed.

Even these decisions of the two factions have not been recognised by the Election Commission, arguing that decisions taken by both factions have not followed due procedure as provisioned in the statute of the party.

On January 7, the commission reminded the Oli faction that its expansion of the central committee goes against the party’s statute which allows the party’s Central Committee to nominate a maximum of 10 percent of its total strength as new members. Before the present dispute arose, its Central Committee had 445 members.

If the party is to nominate more members to its Central Committee the party statute has to be amended and that can only be done with a two-thirds majority of the Central Committee.

The commission has also raised questions with the Dahal-Nepal faction about its removal of Oli as the chair and appointment of Nepal in his place. As per the party’s statute, a two-thirds majority of the relevant committee or commission of the party is needed to appoint someone in the vacant post of officer-bearer.

The Election Commission has also asked whether the due process was followed while taking action against office-bearers for indiscipline. As per the statute, a party member subjected to action should be given time for clarification. This provision was not followed, according to the commission.

Even more difficult for any faction to claim to have acted as per the party statute is the provision that signatures of the two co-chairs are required in any official letter of circular as per the party statute or the signature of only one chair if any decision is made through mutual consent.

“The commission cannot update any notification given by rival factions if they have not followed the due procedure as provisioned in the party’s statute,” a legal expert, who has worked at the commission, told the Post. “Considering the provision of statute of the Nepal Communist Party, it is very difficult for the commission to give legitimacy to any faction until one faction takes a decisive step to split the party.”

Had any faction had made claims of legitimacy as per section 44 (1) of the Political Parties Act-2017, the commission could have given recognition to the faction that could show majority in the central committee. 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 Parties Act.

The commission last week asked both factions to submit details confirming that the decisions they made were in conformity with the constitution, laws and regulations and the party statute as per the provision 25 (4) of regulations of the Political Parties Act-2017.

Subas Nembang, a Standing Committee member from the Oli faction, said his faction would submit the details the Election Commission has asked for on Wednesday.

Only if the commission is satisfied with the submission of detail will it recognise and update the changes that it has been notified of. If not, as per provision 25 (6) of the Political Parties Regulations, the commission will recognise the existing details of the party.

This means the commission will not recognise any faction as the legitimate one, prolonging the stalemate in the Nepal Communist Party.

“It is very difficult for both factions to follow the party statute to claim legitimacy,” said the legal expert. “If any faction has the two-thirds majority in the Central Committee, it can first amend the statute and submit the amended statute to the commission. Only after getting a nod to the amendment will decisions taken based on the amended statute be recognised by the commission.”

Even though the Dahal-Nepal faction has claimed the support of two-thirds majority in the Central Committee, it has not used this strength to amend the statute yet.

“If any faction fails to amend the regulation first, one faction has to approach the commission with the aim of splitting the party,” said the legal expert.

But neither faction seems to want to take that step and be seen as the cause of the split as per the section 44 (1) of the Political Parties Act-2017 even though both sides are running parallel activities as if they are already separate parties.

A Standing Committee member of the Oli faction told the Post that his faction legitimately represents the party because the faction led by the first chair and general secretary should be recognised as the legitimate one.

“No meeting can be held without the first chair’s instruction and the general secretary’s call as per our statute,” the leader said on condition of anonymity.

But Surendra Pandey, a Standing Committee member from Dahal-Nepal faction, said theirs is the legitimate faction of the Nepal Communist Party because it has the support of nearly 70 percent of Central Committee members.

“As per the statute of our party, any decision is taken by a majority of the Central Committee,” Pandey told the Post. “Therefore, whatever decision that has been taken by the majority is the official decision of the party.”

The commission may be seeking details but it needs to make a decision, he said.

“There is no alternative for the commission other than recognising us as the faction to legitimately represent the party,” Pandey said.

But legal observers said that the commission taking any decision with regard to legitimacy of one faction is remote.

“Most probably the Election Commission will wait for the verdict of the Supreme Court regarding the dissolution of the House of Representatives which will create another environment,” said Senior Advocate Srihari Aryal.

“The commission had the option to recognise one faction by verifying the signatures of Central Committee members submitted by both factions. But instead it has focussed on the process rather than the essence regarding the implementation of Article 44 (1) of the Act and that has complicated the split process. This is not helping Dahal-Nepal’s cause.”