The ruling Nepal Communist Party’s decision to nominate Bamdev Gautam to the National Assembly so as to take him to the Cabinet has stoked a debate whether the constitution allows him to become a minister, as he had lost the parliamentary elections in 2017.

Legal opinions are divided–some say the constitution does not bar him from becoming a minister, while others say it does.

Constitutional lawyer Bhimarjun Acharya says appointing Gautam as a minister will be a clear violation of Article 78 (4) of the constitution. Article 78 (4) says: A person who has been defeated in the election to the then House of Representatives shall not be

qualified to be appointed to the office of Minister during the term of such House of Representatives.

“Since Article 78 (4) talks about a person who has lost the Lower House elections, such a person cannot be a minister,” Acharya told the Post.

Others say the constitution does bar Gautam from becoming a minister, as Article 76 (9) of the constitution will be invoked.

Article 76 (9) says: The President shall, on the recommendation of the Prime Minister,

constitute the Council of Ministers comprising a maximum of twenty-five

Ministers including the Prime Minister, in accordance with the inclusive principle,

from amongst the members of the Federal Parliament.

The Post reached out to at least two members of the Constitution Drafting Committee of the Constituent Assembly to inquire about the ambiguity.

According to them, the five-year moratorium for those losing the elections was written in the constitution with good intentions, as there were concerns during the time of drafting also that a situation might arise when some defeated politicians would try to use their clout to become ministers.

“The provision [Article 78 (4)] was included after a long discussion,” said Som Prasad Pandey, who was a member in the drafting committee representing then CPN-UML “We, however, could not foresee that the parties would appoint an individual to the Upper House even after losing the Lower House elections.”

According to Pandey, who is a member of the House of Representatives representing the ruling Nepal Communist Party, it would be against the spirit of the constitution to appoint someone defeated in the elections as a minister.

Rewati Raman Bhandari, who was also a member of the drafting committee representing then CPN-UML, said appointing someone who was defeated in the elections to the House of Representatives as a minister will raise legal questions.

“Appointing a person who lost the elections to the Upper House itself is against the spirit of the constitution,” Bhandari, who is currently the chair of the law commission in Province 1, told the Post.

Bhandari, who is also a lawyer, conceded that the ambiguity has surfaced because the drafters failed to foresee situations like today’s, when Gautam is being taken to the National Assembly by his party with a view to making him a minister.

Gautam, however, won’t be the first politician to reach the National Assembly when he is appointed even after losing the parliamentary elections. Nepal Communist Party spokesperson Narayan Kaji Shrestha, who also lost the 2017 elections, was appointed to the National Assembly back in January.

So how does the ambiguity arise?

Experts say it depends on which Article is invoked.

If Article 78 (4) is to be invoked, it clearly bars Gautam’s appointment as a minister. But if Article 76 (9) is invoked, it gives the prerogative to the prime minister.

The House of Representatives and the National Assembly together make the federal parliament. So, according to legal experts, even if the person has lost the elections, once he or she is appointed to the National Assembly, they “become” a member of the federal parliament. And by that extension, the individual is eligible to become the minister.

Senior advocate Chandra Kanta Gyawali, who also specialises in constitutional law, said Article 78 (4) comes into play whenever attempts are made to appoint a person who lost the elections.

In Gautam’s case, the process to appoint him as a minister will be initiated only after his entry into the Upper House, which makes him a member of the federal parliament, according to Gyawali.

“The constitution doesn’t stop a lawmaker from becoming a minister,” Gyawali told the Post.

Those involved in the drafting of the constitution admit that provisions could have been written in a more clear way and that multiple aspects should have been taken into consideration and foreseen.

“I agree that the drafters could have written the provisions more clearly,” said Bhandari. “If legal complexity arises, the Supreme Court will decide, as it is the final interpreter of the constitution.”

Yet another ambiguity in the constitution had surfaced in December last year, when then Samajbadi Party withdrew its support to the KP Oli government. There was a debate if Oli needed to face the floor test.

Some said he needs to table a motion as per Article 100 (2) of the constitution, while others said as the Nepal Communist Party holds a comfortable majority, it was not necessary for Oli to pass the floor test even if a party pulled out its support.

Those involved in the drafting process had said the provision of the motion of the vote of confidence was introduced as they didn’t envision that there would ever be a majority government due to the electoral system Nepal has adopted. They had said that they didn’t expect any party to get a comfortable majority in the mixed—first-past-the-post and the proportional representation—electoral system.

Then CPN-UML and CPN (Maoist Centre) had forged an electoral alliance in 2017. Since they merged after the elections to become the Nepal Communist Party, the party won a comfortable majority.

Bhandari said ambiguities in the constitutional provisions should not be taken otherwise.

“The constitution is a living document and constitutional practice an evolving process,” said Bhandari. “We have the Supreme Court as the ultimate interpreter of the constitution and the Constitutional Bench as arbiter, should constitutional problems arise.”

Legal experts who say the constitution bars Gautam from becoming the minister say in Article 76 (9), the phrase “... from amongst lawmakers” should be interpreted in its spirit that it recognises those as lawmakers who won the elections and not those who lost but were later appointed to the Upper House.

“It is wrong to say appointing Gautam a minister is the prime minister’s prerogative, when there is a clear provision that bars him from becoming a member of the Council of Ministers,” said Acharya, the constitutional lawyer.

For non-elected individuals to become a minister, the constitution has a different provision altogether, as per which Yubaraj Khatiwada was appointed finance minister on March 4.

According to Article 78 (1), the President may, on the recommendation of the prime minister, appoint a person who is not a member of the federal parliament as a minister and the minister.

After Khatiwada’s two-year tenure ended on March 3, he was reappointed. But he had to resign on Friday, as Article 78 (2) says if a non-elected person is appointed a minister, he or she must obtain membership of the federal parliament within six months from the date of taking oath.

Oli bade farewell to Khatiwada despite wanting to continue him as his finance minister because he was under pressure to take Gautam to the National Assembly where only one seat is vacant.

Gyawali, the constitutional lawyer, said once Gautam is appointed to the Upper House, as per constitutional provisions, it’s up to the prime minister and that he can appoint him as a member of his Cabinet.

“As far as Gautam’s appointment as a minister is concerned, it’s more a moral issue,” said Gyawali, “than a legal matter.”