On March 20, when Prime Minister and CPN-UML chair KP Sharma Oli called a meeting of the Parliamentary Party, some members like Bamdev Gautam from the National Assembly and Bidhya Bhattarai from the House of Representatives were present.

Earlier this week, Narayan Kaji Shrestha, a member of the National Assembly was present in the meeting of the Parliamentary Party of the Communist Party of Nepal (Maoist Centre).

Ever since the Supreme Court decided to scrap the Nepal Communist Party (NCP) and revive the UML and the Maoist Centre, both have been holding the meeting of their parliamentary parties separately.

There, however, is confusion about some members like Gautam, Bhattarai and Shrestha, and 16 others as there is no clarity as to which party they actually represent in the federal parliament, as they were elected on the Nepal Communist Party (NCP) ticket.

“Deciding the status of lawmakers who won as Nepal Communist Party (NCP) candidates is a complex task,” said Rojnath Pandey, spokesperson for the Parliament Secretariat.

The March 7 court decision to revive the UML and the Maoist Centre has led to political complications and one of them is the status of those who were elected under the Nepal Communist Party (NCP) ticket. Passing a verdict on an almost three-year-old case, the Supreme Court scrapped the Nepal Communist Party (NCP), saying a party with a similar name was already registered with the Election Commission, and revived the UML and the Maoist Centre.

The court had also ordered the Election Commission to initiate the process of merger between the two parties, if they wish to merge, within 15 days, in such a way that no existing laws are violated.

The Election Commission had asked the two parties—the UML and the Maoist Centre—if they could approach it within 15 days if they wished to unite again. Neither showed interest. The deadline has elapsed.

Officials at the Parliament Secretariat wonder how such members elected neither as UML nor as Maoist Centre candidates are supposed to react when it comes to party whips.

The UML and the Maoist Centre had formed a “left alliance” to contest the 2017 elections. The UML won 121 seats and the Maoist Centre 53 in an overwhelming victory for the two communist parties to form a strong government.

With the Maoist Centre’s support, Oli was elected prime minister in February 2018. In May that year, both parties merged to form the Nepal Communist Party (NCP).

Over the three years until Oli dissolved the House on December 20, as many as 16 leaders were elected to the upper house and one to the lower house on the Nepal Communist Party (NCP) ticket.

“It is up to the Election Commission to decide which party these members represent in the federal parliament,” said Pandey.

The federal parliament currently recognises only those who were elected either as UML candidates or Maoist Centre candidates, as the court had explicitly said both the parties were back to their pre-merger stage. There is no party called Nepal Communist Party (NCP) in the federal parliament now.

On Tuesday, Khagaraj Adhikari, a UML member in the lower house and Central Committee member of the party, asked from which party Agni Sapkota was elected to the post of Speaker. Adhikari put forth the question while addressing a meeting of the House of Representatives.

Sapkota had won the 2017 general elections from Sindhupalchok Constituency 1 on the Maoist Centre ticket.

But when he was elected Speaker in the third week of January last year, he was fielded by the Nepal Communist Party (NCP).

Determining the party from which the Speaker is elected holds significance because the constitutional provisions call for electing Speaker and deputy Speaker from two different parties.

The question as to which party Sapkota represented to assume the Speaker post comes at a time when Oli is trying to cultivate the Janata Samajbadi Party to stay in power. A power-sharing deal between Oli and the Janata Samajbadi Party is likely to entail, among other things, the post of deputy Speaker to the party.

Ever since Shiva Maya Tumbahangphe, also a UML member in the lower house, resigned in January, no deputy Speaker has been elected. Though Oli has tried to justify that the House has become irrelevant, if he manages to cling on to power, he could try to push for a Speaker from his own party.

Before Sapkota, Krishna Bahadur Mahara, a Maoist Centre lawmaker, was the Speaker until he resigned in October 2019 after he was embroiled in an attempted rape case.

Oli in the past had expressed his grievances about Mahara’s non-cooperation to his government.

Pandey, the spokesperson for the Parliament Secretariat, however, does not see a problem in deciding from which party Sapkota was elected to the Speaker's post.

“We know which party the Speaker belonged to before he was elected to the post,” Pandey told the Post. “Since he was known as a Maoist Centre member in the House until his party merged with UML in May 2018, it is understood that he came from the Maoist Centre.”

The lower house has met five times ever since it convened first on March 7 after the Supreme Court reinstated it by overturning Oli’s decision to dissolve it.

Though it has not undertaken any concrete business so far, the status of those elected under the Nepal Communist Party (NCP) could result in some complications at some point of time and hence it’s better to sort the matter out at the earliest, observers say.

While the Parliament Secretariat says it is the Election Commission that will decide on the status of those elected under Nepal Communist Party (NCP), officials at the poll body say they have not looked into the matter yet.

“This is not just a legal issue; it’s rather a political issue,” said Raj Kumar Shrestha, spokesperson for the commission.

Of the 16 members elected to the National Assembly from the Nepal Communist Party (NCP) quota, Bedu Ram Bhusal, Indira Gautam, Devendra Dahal, Bhagwati Neupane, Bimala Ghimire, Gopal Bhattarai, Sumitra BC and Sharada Bhattarai are from the UML. They have been attending the meeting of the UML Parliamentary Party. Narayan Kaji Shrestha, Gopi Acchhami, Radheshyam Pashwan, Ganga Belbase, Jag Prasad Sharma and Ganga Belbase are from the Maoist Centre.

Bamdev Gautam is vice-chair of the UML and was nominated to the upper house on September 17, last year.

Bidhya Bhattarai won the by-election from Kaski Constituency 1 held in December 2019. Her husband, Rabindra Adhikari, who had won from the constituency, died in February 2019 in a helicopter crash.

Apart from 18 members of the federal parliament including Gautam, over two dozen representatives have been elected to the local governments on the Nepal Communist Party (NCP) tickets.

“One of the possible scenarios is that those elected as Nepal Communist Party (NCP) could be given the status of independent members,” said Shrestha of the election commission. “They could be then allowed to make a choice whichever party they want to join.”

Legal experts say there is no proper law to resolve the issue of those elected under the Nepal Communist Party (NCP), as such a development was unprecedented. There is no legal solution to this particular issue, according to them.

Chandra Kant Gyawali, a senior advocate who specialises on constitutional law, said it was the responsibility of the Supreme Court to provide a solution, as this problem was bound to arise after it ordered the revival of the UML and the Maoist Centre.

“When the court scrapped the merger of the UML and the Maoist Centre, it should have been able to foresee this situation,” Gyawali told the Post. “As far as I understand, these elected representatives will most probably get independent status. However, I see complications if they are allowed to choose either of the parties on their own.”

Gyawali’s assumption stems from the fact that cadres and members of both the UML and the Maoist Centre voted, say in case of Bidhya Bhattarai, to ensure her victory. If Bhattarai is given independent status and then allowed to choose a party; and if she chooses the UML, which is most likely, Maoist members could ask what about their votes that contributed to her win.

According to Gyawali, even legal issues could arise because if those elected under the Nepal Communist Party (NCP) are asked to choose a party, it could be tantamount to defection.

Clause 32 (2) of the Political Parties Act says that a group can split a party and form a new party only when they command the support of at least 40 percent members of the Parliamentary Party and the Central Committee, said Gyawali.

But some say Clause 29 of the Political Parties Act could be invoked to settle the issue, as it says if a lawmaker elected as an independent candidate chooses to join any party, they will automatically be considered a member of the Parliamentary Party of the respective party.

“Anyway, as natural persons, the representatives have the right to make their choices,” said Radheshyam Adhikari, a National Assembly member from the Nepali Congress. “Laws don’t define or guide everything. The representatives at the federal parliament and local governments should be allowed to choose the party.”

According to Adhikari, if there is objection from one party for choosing the other or if there are other controversies, the issue will ultimately reach the court.

“The Supreme Court will have to intervene if such controversies arise,” said Adhikari.

But the Supreme Court will do what it needs to when the matter reaches there, but in case of party whips, there could be some confusion, some legal experts say.

Chief whips on occasions issue whips to their party lawmakers, asking them to be mandatorily present in a certain House meeting or vote in favour of or against a bill. There is no clarity as to how these lawmakers who don’t have a party should react.

“The Election Commission in consultation with the parties and the Parliament Secretariat should resolve the matter at the earliest,” Mohan Lal Acharya, an advocate and a former adviser to the Constituent Assembly, told the Post. “Yes, failure to sort the issue out will mean it will ultimately reach the court.”