With court reprieve to Gautam, equation in ruling party may changeAs the Supreme Court clears decks for Bamdev Gautam to become minister, a change of camp by him to Oli may throw the Dahal camp into minority in the Secretariat.
With the Supreme Court refusing to issue an interim order, decks have been cleared for Nepal Communist Party vice-chair Bamdev Gautam, who was nominated a member of the National Assembly on September 17, to assume any constitutional position and also to become a minister.
The Constitutional Bench’s refusal to issue the interim order will mean an earlier order of September 23 by a single bench of Justice Ananda Mohan Bhattarai asking the authorities not to give Gautam any additional constitutional responsibilities automatically becomes null and void.
The Constitutional Bench of the Supreme Court, led by Chief Justice Cholendra Shumsher Rana, and justices Dipak Kumar Karki, Harikrishna Karki, Bishwombhar Shrestha and Ishwor Khatiwada said on Wednesday that the interim order cannot be issued.
The written decision was not immediately available.
Gautam’s nomination to the Upper House by the KP Sharma Oli government and then his subsequent appointment by President Bidya Devi Bhandari had generated quite some debate, with many questioning the move.
Gautam lost the 2017 parliamentary elections from Bardiya Constituency 1. The decision to nominate Gautam to the Upper House came amid rising conflict in the ruling Nepal Communist Party (NCP). Gautam has in the past not hidden his ambitions to become a minister. Gautam has even publicly said that he wants to become prime minister. Though the constitution allows a National Assembly member to become a minister, there’s no provision for such a member to become the prime minister. Gautam once had even demanded that the constitution be amended to make room for a National Assembly member to become the prime minister.
But Gautam’s nomination had garnered criticism because he had lost the election.
Two petitions were filed at the Supreme Court after Gautam’s appointment to the National Assembly.
“Things will be clear after the apex court issues a written explanation,” said Dinesh Tripathi, an advocate and one of the petitioners. “There is the need for a clear interpretation of constitutional provisions so that things will be easy for all to understand.”
Justice Bhattarai’s bench on September 3 too had taken cognizance of the case as first of its kind since the adoption of the new constitution and said that the petition against Gautam’s appointment to the National Assembly had given rise to the possibility of “serious constitutional explanation”.
“Until a further interim order, put the issue on hold,” Bhattarai’s bench had ruled.
Justice Bhattarai’s order had come in response to two separate writs filed by senior advocate Tripathi and advocate Badrinath Bhatta demanding that Gautam’s appointment as an assembly member be annulled and that the authorities be ordered not to give any constitutional responsibility to him.
Whether Gautam could become a minister or not was widely debated after his appointment to the Upper House.
Analysts have been citing two different Articles.
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.
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 as a minister during the term of such House of Representatives.
Opinions of legal experts are divided as Article 78 (4) bars Gautam from going to the Cabinet for losing the elections but Article 76 (9) may allow him to become minister once he is sworn into the National Assembly.
Gautam is a key member in the Nepal Communist Party. In the nine-member Secretariat, his role is considered crucial. How the leadership considers Gautam an important leader is also apparent from the fact that the party had even amended the party statute to elevate him to the post of vice-chair.
Despite a decision by the Standing Committee back in February 26 to nominate Gautam to the Upper House, Oli did not recommend Gautam for the same amid opposition from the rival faction led by Pushpa Kamal Dahal, the other chair.
Meanwhile, Gautam kept on switching sides between Oli and Dahal. The last time Oli managed to win over Gautam was in July when the former reached the latter’s residence in Bhaisepati.
Subsequently, the ruling party on September 3 decided to nominate Gautam to the Upper House.
The Oli Cabinet on September 14 decided to recommend to the President that Gautam be appointed to the Assembly. Gautam was inducted to the federal parliament on September 17.
After then finance minister Yubaraj Khaitwada’s two-year term as a National Assembly member ended on March 3, Oli had reappointed him finance minister the following day. As per constitutional provisions, a non-elected member can become a minister but the person must take the oath either of the House of the Representatives or the National Assembly within six months from the date of the appointment. After six months, Khatiwada resigned as finance minister on September 4. There were speculations that Gautam would be appointed a minister. But the petitions at the Supreme Court had thrown a spanner in the works.
The Supreme Court order clearing the way for Gautam to assume any constitutional positions comes at a time when the conflict has once again deepened in the ruling party as Oli and Dahal are at odds. The nine-member Secretariat is largely divided, and with Gautam currently on Dahal’s side, the Oli camp is in the minority.
The likelihood of Gautam becoming a minister even after the court clearing the hurdle will remain low until he remains in the Dahal camp.
The court is expected to dramatically change the equation in the ruling party. Oli so far has been refusing to hold the Secretariat meeting despite Dahal’s repeated calls, as the former is in the minority and he does not want the party committee to take any decision. If Gautam now sides with Oli, he will have the majority in the Secretariat, with Bishnu Poudel, Ishwar Pokhrel and Ram Bahadur Thapa already backing him.
The Dahal faction, which has senior leaders Madhav Kumar Nepal, Jhala Nath Khanal, Narayan Kaji Shrestha and Gautam, on Tuesday, for a second time, demanded that Oli call a meeting of the Secretariat. Oli refused.
There is no clear indication from either faction whether a meeting will be held on Thursday.
Meanwhile, after the Supreme Court’s refusal to issue an interim order, Gautam wrote on social media.
“I would like to express gratitude to everyone and am grateful to all the legal professionals who argued [in the court] on my behalf,” Gautam posted on Facebook.
“This issue was not related to any post or prestige. I would like to express my commitment towards constitutional supremacy and I will always stand for the system and procedures.”