House restored but poll body still has to settle ruling party disputeExperts say the Supreme Court verdict may have taken some pressure off Election Commission but it cannot sit on the case forever.
Even as the Supreme Court’s verdict to reinstate the dissolved House of Representatives has reduced pressure on the Election Commission to settle the dispute in the Nepal Communist Party immediately, the dispute continues and the commission is required to settle it sooner or later.
The commission, which is competent to settle the dispute in the political parties as per the law, seems to be hesitating to take a decision on the party’s dispute amid pressure from both factions of Nepal Communist Party—one led by Prime Minister KP Sharma Oli and the other by former prime ministers Pushpa Kamal Dahal and Madhav Kumar Nepal.
More than three weeks since the Dahal-Nepal faction made formal claims to legitimately represent the Nepal Communist Party by submitting a plea as per Section 44 (1) of the Political Parties Act-2017, the commission has not yet taken any steps to settle the dispute.
Officials at the commission say they are still in the phase of studying the matter. The elections slated for April 30 and May 10, which won’t be held after Tuesday's Supreme Court verdict, got near but the commission was in no rush to settle the dispute.
As per Section 44 (1) of the Political Parties Act, a faction that claims the original party, stamp, flag and symbol needs to submit papers with all the documents to the commission along with the signatures of at least 40 percent Central Committee members within 30 days after a dispute arises.
After the claims are made as per this provision, the commission needs to seek a written response from the rival faction by serving a 15-day deadline as per Section 44 (2) of the Act.
But officials at the commission said it is yet to seek a response from the Oli faction even 22 days after the Dahal-Nepal faction claimed legitimacy.
“The commission has not sought a response from the Oli faction yet,” said Komal Dhamala, assistant spokesperson for the commission. After the court verdict effectively nullified the elections, the commission is not compelled to rush a decision regarding the dispute but it’s uncertain when the commission will decide on the matter.
“We want to make a mature decision. We are taking time to study legal provisions and have held consultations with experts. Is there any rule that we should settle such disputes in a single day?” asked an election commissioner, on condition of anonymity.
“Before the Supreme Court’s verdict, we were in a race against time for election preparations as well as settling the dispute of the Nepal Communist Party. As elections won’t be held in April and May, we will now focus on settling this dispute. The decision will be taken as soon as possible.”
Stakeholders and analysts say that the commission should not delay in making a decision, given that the Dahal-Nepal faction has already made formal claims for legitimacy as per Section 44 (1) of the Political Parties Act.
As per the Act, after a faction formally claims legitimacy over the party, the commission needs to first allow rival factions to settle the dispute.
Only if they fail to settle the dispute does the commission need to give legitimacy to the faction that can prove its majority in the Central Committee that existed before the dispute arose while allowing the rival faction to register a new party as per Section 44 (6) of the Act.
“With the dispute continuing, the question now is where the lawmakers of rival factions of Nepal Communist Party would sit in Parliament—in the seats allocated for the ruling party or the opposition, after the reinstatement of the lower house,” said Bhojraj Pokharel, a former chief election commissioner. “So the commission needs to make a decision as early as possible.”
According to officials, the commission is in a dilemma about its decision as the Dahal-Nepal faction approached it seeking legitimacy after the deadline for submitting the application had expired.
The dispute surfaced after both factions held separate Central Committee meetings on December 22—two days after President Bidya Devi Bhandari dissolved the House on the recommendation of Oli and announced fresh elections.
Former chief election commissioner Pokharel, however, said: “The commission does not have to assume that the dispute in the Nepal Communist Party started on December 22 for no reason. It has to look into what the applicant (Dahal-Nepal faction) has claimed regarding the dispute when it began. If it has mentioned that the point of dispute began much later than what is perceived, the commission should make efforts to settle the dispute by considering that date.”
On January 24, the commission refused to give legitimacy to either faction arguing that both factions failed to follow the party statute in their decision making.
By refusing to accept the Central Committee enlarged by the Oli faction, the commission had recognised the 441-member Central Committee formed after the merger between the erstwhile CPN (UML) and CPN (Maoist Centre) in 2018. Oli, on December 22 last year, had unilaterally expanded the Central Committee to 1,199-member which was later expanded further to 1,501.
“After the January 24 decision of the commission failed to settle the dispute in the ruling party, the Dahal-Nepal faction submitted a new application seeking settlement of dispute,” said Pokharel. “So the commission as a competent authority to settle the dispute must proceed with the second application.”
The Dahal-Nepal faction said that the commission could not claim that the deadline of making claims for legitimacy had already passed citing that the dispute in the party had arisen on December 22 last year.
“It is because our faction had asked the commission to update the decision of the party’s Central Committee to remove KP Sharma Oli from the post of party chair on December 22,” Lilamani Pokhrel, a Standing Committee member of the Nepal Communist Party representing the Dahal-Nepal faction had told the Post last week.
“After the commission refused to update our Central Committee’s decision and decided to maintain the 441-memeber Central Committee as it is in its record book, dispute in the party officially began on January 24.”
Another former election commissioner, Ayodhee Prasad Yadav said the rival factions of the ruling party could again seek a solution on the dispute from the commission after its decision on January 24 failed to settle the dispute.
“After the new application is submitted, the commission needs to move ahead to settle the dispute accordingly. It cannot say it will not decide as the deadline for submitting an application has lapsed. It is clear that both factions of the party had communicated the decision of each faction since the lower house was dissolved on December 20,” he said.
Earlier, the government had also not been cooperating with the commission to settle the party dispute. Right after the dispute arose in late December last year, the commission had amended the regulation to the Political Parties Act-2017 allowing it to settle the dispute even after election dates were announced. Earlier, the regulation prevented the commission from settling the dispute after the election dates were announced. But the government didn’t publish the amendment to the regulation in the Nepal Gazette, raising questions if the commission could settle the dispute without the regulation having been published in the Nepal Gazette.
“Despite knowing that holding elections was impossible without settling the Nepal Communist Party dispute, the government didn’t cooperate with the commission in publishing the regulation in the Nepal Gazette,” said Nilkantha Upreti, former chief election commissioner. “Had the government been serious about holding the elections, it could have facilitated the process of dispute settlement in the ruling party.”
After the Supreme Court reinstated the House, the elections will not be held in April and May. Analysts have claimed that the verdict has established the supremacy of the constitution.
“Like the Supreme Court took decisions based on the constitution, the commission should also take decisions based on the existing laws and past decisions taken by the commission in similar disputes,” said former chief commissioner Yadav.