When the framers of Nepal’s constitution and lawmakers were writing constitutional provisions and laws, their focus was on ending the vicious cycle of political instability that had plagued the country for decades. And rightly so, their focus was on framing the constitutional provisions and laws so as to ensure stability. While paying excessive attention to that fact, the lawmakers, however, appear to have made a massive oversight, which has been exposed now.

What started as a good intent has led the country to the same situation which they wanted to end.

Nepal’s lawmakers deliberately incorporated some difficult provisions in the Political Party Act regarding the party split. Past experiences suggested politicians were quick to split a party, switch sides or register a new party.

Hence, they wrote Section 33 (2) in such a way that it made party splits difficult.

Section 33 (2) of the Political Parties Act-2017 says a new party can be formed by splitting a party with the support of at least 40 percent members of the Parliamentary Party and the Central Committee of the existing party.

Today, the Nepal Communist Party, which emerged as the largest force in the country after the 2017 elections, is facing a crisis. It is split into two politically. But it’s legal split has become complicated.

Both the factions led by Prime Minister KP Sharma Oli and Pushpa Kamal Dahal and Madhav Kumar Nepal claim to have control over the majority of Central Committee and Parliamentary Party members but they cannot directly claim for party split. A party split is not possible unless 40 percent members from both the Central Committee and the Parliamentary Party are proved in front of the Election Commission.

As the political crisis continues amid Oli’s refusal to step down despite the Supreme Court passing a verdict against his December 20 decision to dissolve the House, both factions are in exercise to “oust” members who are not on their sides.

The Dahal-Nepal faction on Wednesday through its Central Committee “took action” against seven leaders from the Oli faction. The faction on December 22 had “ousted” Oli as a general member of the party.

The Dahal-Nepal faction said it has suspended Subas Nembang from the Standing Committee and directed him to resign as the deputy leader of the Parliamentary Party within three days. It also sacked Bishal Bhattarai, who was recently appointed the chief whip by the Oli faction; Shanta Chaudhary, the party’s whip; and Prabhu Sah, minister for urban development in the Oli Cabinet, as Central Committee members. It also ousted Oli’s press adviser Surya Thapa, Mahesh Basnet and Karna Bahadur Thapa from the Central Committee.

The move from the Dahal-Nepal faction comes a week after Oli removed Dev Gurung as the chief whip and appointed Bhattarai in his place. Gurung belongs to the Dahal-Nepal faction.

Shreekrishna Aniruddh Gautam, a political commentator and columnist for the Post’s sister paper Kantipur, says the country’s politics has reached today’s situation because in Nepal lawmakers often tend to take a reactive approach, thereby failing to anticipate various future scenarios.

According to Gautam, the 40 percent provision for the party split in the Political Party Act and depriving the prime minister of the authority to dissolve the House were a result of a reactive approach taken by the lawmakers.

“The constitution actually not only weakened the prime minister but also Parliament,” Gautam told the Post. “Nor could we achieve the goal of stability.”

There could be legal complications, which are more technical, but the provisions that were aimed at stopping frequent party splits, however, failed to stop the Nepal Communist Party from splitting.

Until a few months ago, the Nepal Communist Party was the ruling party, but now half of it is ruling while the other half is acting as though it is an “opposition”.

Rekha Sharma, who was a member of the State Affairs Committee that finalised the Political Party Act, agrees that the stern provisions were intentionally inserted after deliberations in view of the frequent party splits, a major cause of political instability.

“It was brought with good intentions and it by and large served its motive,” Sharma told the Post. “However, it is true that we hadn’t anticipated the present scenario.”

According to her, those in leadership positions of the parties failed to internalise the intent behind having such provisions and laws.

Today, the Nepal Communist Party is in such a state that it can neither remain one nor split because of the complex legal provisions.

The Dahal-Nepal faction claims to have at least two-thirds of the 441 Central Committee members. It also claims to have around 87-90 members of the Parliamentary Party with it. It, therefore, is staking claim to the Nepal Communist Party, its flag, emblem and the sun election symbol. The Election Commission, however, has refused to recognise its claims. The Oli faction cannot make a move for a party split because it lacks the numbers (40 percent of Central Committee members).

Back in April last year, Oli had introduced an ordinance to amend the provision so as to facilitate a party split and the registration of a new party. The ordinance aimed to change 40 percent of Central Committee and Parliamentary Party members to “40 percent of either Central Committee members or Parliamentary Party members.” However, Oli was forced to withdraw the ordinance after widespread criticism.

Analysts and experts on legal matters say the constitution and laws should be futuristic and must be able to foresee complexities that could arise in the future.

The constitutional provisions taking away the prime minister’s right to dissolve the House were also aimed at ensuring stability. The framers of the constitution themselves have admitted that they had held thorough discussions on how prime ministers in the past, under the 1990 constitution, were employing the inherent power vested in them to dissolve the House at the drop of a hat.

But while making it difficult for the prime minister to dissolve the House, the framers failed to envision a situation that arose after Oli’s dissolution move.

Experts say three different factors have led the country to the present situation—a lack of leadership culture, a lack of faith in the constitution and the law, and preference for the party's Central Committee over the Parliamentary Party.

“While it is true that the constitution has weakened the prime minister by removing his prerogative to dissolve the House, it also gives him protection,” Bipin Adhikari, a former dean at Kathmandu University School of Law, told the Post. “As far as Oli’s move is concerned, it clearly shows that he did not have faith in the protective measures of the constitution he voted for.”

With the Supreme Court order on February 23, the House is set to commence its meeting on Sunday. But clouds of uncertainty are hovering above the country.

The Dahal-Nepal faction is baying for Oli’s blood, while Oli is adamant on his stance, and is challenging Dahal and Nepal to unseat him.

The Nepali Congress, which has 63 seats (two suspended), is sitting on the fence, weighing options so as to achieve political gains. The Janata Samajbadi Party has just 32 members in Parliament, hardly enough to change the national political landscape.

Experts say it’s not just the laws but the political leadership’s strong will and intent that guide the country’s politics. And if the laws meant for certain purposes fail to achieve the intended goal, they must be changed, according to them.

Bidur Prasad Phuyal, a professor of political science at Tribhuvan University, said if the Political Party Act introduced to ensure stability failed to yield results and rather blocked the democratic process, it needs a revision.

“It’s not possible to anticipate everything while making laws,” Phuyal told the Post. “If any law does not work then it needs to be revised.”

But a revision to any law or an amendment to the constitution must undergo a thorough process. Despite putting in place the laws and constitutional provisions with good intentions, Nepal’s politicians have once again raised the spectre of instability, which they once vowed to end.

Gautam, the political commentator, said the current developments show Nepali lawmakers were shortsighted in performing their legislative roles and should serve as a lesson during lawmaking processes in the future.

Adhikari, the law professor, however, accused the Election Commission of failing to perform its duty.

“The ongoing deadlock is certainly the result of a lack of political culture in Nepal’s political parties,” said Adhikari. “But the Election Commission too failed to take a decision promptly, thereby adding to the confusion.”