The KP Sharma Oli caretaker government questionAs Oli ceases to be a member of the House of Representatives, which he dissolved, he can only be a caretaker prime minister, experts say. But he did not resign despite calling snap polls.
Amid the wide-ranging constitutional debates after Prime Minister KP Sharma Oli’s decision to dissolve the House of the Representatives, one point that has yet to be extensively discussed is the status of Oli and his government.
If Oli is governing and taking decisions with the authority arising from the confidence of the House, then he himself has dissolved that entity, and if he is just a caretaker prime minister, then there has been no declaration to that effect. Nor did he resign after dissolving the House to be appointed as a caretaker prime minister.
Lawyers and experts on constitutional affairs say there is no doubt that the moment Oli dissolved the House, he reduced himself to a caretaker prime minister.
“As soon as he dissolved the House of Representatives, the government turned into a caretaker one,” said Bipin Adhikari, former dean of Kathmandu University School of Law.
Even though there have been precedents of prime ministers dissolving the House, one startling difference between them and Oli is all of them had tendered their resignations after recommending such moves, but the current prime minister has not.
Whether Oli, as a majority prime minister, was allowed to dissolve the House is currently being tested by the Supreme Court.
Senior advocate Chandra Kanta Gyawali, who specialises on constitutional law, says the constitution has clearly laid out on what conditions the office of the prime minister goes vacant and what happens in that situation. Of the four conditions prescribed by Article 77 (1), one is when the prime minister ceases to be a member of the House of the Representatives.
“Article 77 (1) (c) clearly states that the office of the prime minister will be vacant if he or she ceases to be a member of the House of Representatives,” Gyawali told the Post. “The moment the letter from the Office of the President about approving Oli’s House dissolution recommendation reached the Parliament Secretariat, Oli ceased to be a member of the lower house.”
Article 77 (3) says if the office of prime minister falls vacant, the same Council of Ministers shall continue to act until another Council of Ministers is constituted.
“As per Article 77(3), Oli has automatically become a caretaker prime minister,” said Gyawali. “The power of the prime minister comes from the people–the representatives elected by them who sit in the hallowed chambers of the House. If Oli thinks he has got power from somewhere else, we need to ask the source of his power.”
Oli’s House dissolution recommendation and President Bidya Devi Bhandari’s stamp to it have already been described by constitutional experts as a move not allowed by the constitution.
The Constitutional Bench of the Supreme Court has already begun a hearing on as many as 13 writs filed against Oli’s move.
In the past, prime ministers Girija Prasad Koirala (1994), Manmohan Adhikari, (1995), Surya Bahadur Thapa (1998) and Sher Bahadur Deuba (2002) had also attempted to dissolve the House of Representatives.
The Supreme Court upheld Koirala’s decision to dissolve the Parliament, saying it was the prerogative of the prime minister. It, however, overturned Adhikari’s move, saying he could not dissolve the Parliament skipping the no-confidence motion, as there were options to form a new government. In Thapa's case, the then king had sought the Supreme Court’s opinion. The court upheld Deuba’s decision but he was sacked by then king branding him “incompetent”.
All those attempts, however, were made under the Constitution of Nepal, 1990, which authorised the prime minister to dissolve the House. And all of them had tendered their resignations after dissolving the House and called elections.
Oli too has, through the President, called snap polls for April 30 and May 10, but he has not resigned.
Constitutional experts say Oli has been making unconstitutional moves one after another—first by dissolving the House despite the law of the land not allowing him to do so and then by expanding his Council of Ministers as if he were a full-fledged prime minister.
According to them, since Oli ceased to be a member of the House, the President should have invoked Article 77 (3) to ask the same Council of Ministers led by him to continue, thereby declaring him, in effect, a caretaker prime minister, until a new Council of Ministers is constituted.
A new Council of Ministers is possible only after the elections.
The 2015 constitution inherited the provisions regarding the caretaker prime minister from the past constitutions of 1990 and 2007.
Article 36(7) of the 1990 constitution said: If the prime minister is relieved of his office pursuant to Clause (5), the existing Council of Ministers shall continue to function until a new Council of Ministers is constituted.”
Article 38 (9) of the Interim Constitution 2007 similarly stated that even though the prime minister is relieved of his or her office pursuant to Clause (7), the same Council of Ministers shall continue to function until a new Council of Ministers is constituted.
Bhimarjun Acharya, a constitutional lawyer, said there are no ifs and buts when it comes to Oli and his government’s status.
“Oli no doubt is a caretaker prime minister as he has already dissolved the House,” Acharya, who calls Oli’s move a “constitutional coup”, told the Post. “It’s implied in the parliamentary system that when the prime minister dissolves Parliament, he or she is no longer a Member of Parliament and automatically turns into a caretaker prime minister.”
According to Acharya, the President should have told the prime minister that he is a caretaker prime minister.
“But even if the President did not, Oli is a caretaker prime minister until the people vote a new government to power,” said Acharya.
According to constitutional lawyers, as per Article 77 (3) of the constitution, induction of ministers by Oli on Friday was also unconstitutional.
“A caretaker prime minister cannot expand or change the Council of Ministers as the constitutional provision does not allow him to do so,” said Adhikari. “The provisions and practices that are in place mean a caretaker government needs to oversee elections and help constitute a new Council of Ministers through elections.”
A caretaker government may retain full legal powers, but it, in principle, is constrained by convention in its functions, because it is not—or cannot be held—accountable to Parliament.
A caretaker government, hence, has legal, but not political, legitimacy.
According to Adhikari, a caretaker government, at most, can give continuity to ongoing projects.
“New programmes and projects will give rise to the possibility of misuse of state coffers,” said Adhikari. “With elections already declared, such new projects and programmes can be used by those in power to influence voters.”