All eyes on the court with verdict on House dissolution likely todayExperts say what’s important is the order that the bench passes—floor test for Oli, Deuba’s appointment as prime minister or restarting process outlined in Article 76 (5).
As the Constitutional Bench is likely to pass a verdict on Prime Minister KP Sharma Oli’s May 21 House dissolution on Monday, experts have pointed to multiple possible scenarios, which will not only help interpret the constitution but also shape the country’s political course.
Of the 30 petitions against the House dissolution, one was filed by the opposition alliance, which has demanded restoration of Parliament as well as appointment of Nepali Congress President Sher Bahadur Deuba as prime minister.
Experts on constitutional matters say the court is most likely to restore the House but it might stop short of appointing Deuba prime minister.
“The court has ample grounds for the reinstatement of the House of Representatives,” said senior advocate Dinesh Tripathi, who specialises on constitutional law. “The court also has its precedent from the February 23 verdict to overturn the House dissolution decision.”
Oli’s earlier House dissolution of December 20 was overturned by the court on February 23, saying the House could not be dissolved as long as there were possibilities of forming an alternative government.
Nepal’s constitution has laid down four provisions for government formation—Article 76 (1), Article 76 (2), Article 76 (3) and Article 76 (5).
When Oli dissolved the House for the first time on December 20, he was leading a majority government as per Article 76 (1). He was appointed prime minister in February 2018 under Article 76 (2), with the support of the Communist Party of Nepal (Maoist Centre), with which his party CPN-UML had merged in May 2018.
After the merger, Oli became prime minister under Article 76 (1).
When Oli dissolved the House on December 20, at least two constitutional provisions—Article 76 (3) and Article 76 (5)—for the government had not come into play.
Tripathi said since the House was dissolved even when the last provision for government formation was alive, Oli’s recommendation and President Bhandari’s endorsement amounted to contempt of court.
The May 21 decision to dissolve the House followed Oli’s appointment as prime minister under Article 76 (3) on May 13 after he failed a vote of confidence on May 10. Oli was supposed to secure a vote of confidence within June 12 as per Article 76 (4), but instead he prodded Bhandari on May 20 to invoke Article 76 (5).
As per President Bhandari’s call to form a government under Article 76 (5), Congress party’s Deuba, with the support of 149 lawmakers, laid claim to the post of prime minister. But Oli himself also claimed that he had the support of 153 lawmakers. The President rejected both claims, after which Oli dissolved the House.
Experts say the court might not directly order Deuba’s appointment as prime minister but could rather invalidate Oli’s claim to the post of prime minister.
When Oli recommended that the President invoke Article 76 (5), he had said there was no political situation for him to garner a majority in the House to win the confidence vote. But he had not resigned either to claim the post of prime minister again.
“It is quite likely that the court will say Deuba was the only valid candidate for the post of prime minister and that his claim must be taken into consideration,” said Bipin Adhikari, former dean at the Kathmandu University School of Law.
When Deuba approached the President to claim the post of prime minister, he presented the signatures of 149 lawmakers from different parties, including 26 from Oli’s UML, against the required number of 136 to prove a majority.
According to Adhikari, since it is Parliament that tests if someone has a majority, it is possible that the court would ask the Office of the President to leave it to the House to take a decision on the matter.
There, however, are also chances that the court might order a restart of the process where it had ended when the House was dissolved.
Since Oli dissolved the House without letting Article 76 (4) come into play, the court might ask him to follow that procedure, according to Om Prakash Aryal, an advocate.
Article 76 (4) is about securing a vote of confidence by a prime minister within 30 days of his/her appointment made either under Article 76 (3) or Article 76 (5).
Despite being appointed under Article 76 (3), Oli skipped Article 76 (4) to ask the President to invoke Article 76 (5).
“The President should not have initiated the process to form a government under Article 76 (5) as Article 76 (4) was not followed,” Aryal told the Post. “I believe a directive to start the process from Article 76 (4) would be the best course.”
Asking to follow Article 76 (4), however, could come in favour of Oli.
If the Madhav Kumar Nepal faction, which is currently supporting Deuba, decides to throw its weight behind Oli, he will survive the confidence vote and remain in power for another one and a half years, until the periodic elections are held. But if the faction does not support Oli, he will fail the vote of confidence, and Article 76 (5) will constitutionally come into play.
Then the same May 21 cycle would repeat. If the Madhav Nepal faction stops short of supporting Deuba, he won’t be able to become prime minister, thereby making Oli retain power.
Oli’s bid to woo the Nepal faction is aimed at blocking Deuba from becoming prime minister. The 10-member task force on Sunday night reached a 10-point deal to keep the party unity intact. But the decisions on the way forward will be made in meetings that will follow, according to the deal.
As many as 23 lawmakers from the Nepal faction of the UML have signed the opposition alliance’s petition demanding House restoration and Deuba’s appointment as prime minister.
Aryal, the advocate, said though a court order to start the process from Article 76 (4) may look like going in favour of Oli, that would be the best verdict to bring the constitution back on track.
Adhikari, the law professor, however, believes that floor test or initiation of Article 76 (4) became irrelevant the moment he accepted on May 20 that the political situation had not changed since May 10—when he lost the vote of confidence—to prove a majority in the House.
“It was out and out wrong on the part of the President to recognise Oli’s claim to the post of prime minister a day after he declared he lacked a majority in the House,” Adhikari told the Post. “I don’t think not following Article 76 (4) is a big issue.”