In a big blow to Oli, Supreme Court annuls appointments of 20 ministersInterim order asserts government is a caretaker one and terms induction of new ministers earlier this month, after prime minister lost a confidence vote, unconstitutional.
The KP Sharma Oli government is a caretaker government.
This is what the Supreme Court said on Tuesday, as it quashed appointments of 17 ministers and three ministers of state, citing Article 77 (3) of the constitution.
Responding to six different petitions filed against Oli’s move of expanding his Council of Ministers twice after his May 21 House dissolution decision–on June 4 and June 10–a divisional bench of Chief Justice Cholendra Shumsher Rana and justice Prakash Kumar Dhungana called the appointments unconstitutional and ordered not to let the ministers discharge their duties.
“The appointments of June 4 and 10 by the President on the recommendation of the Cabinet are against the intent and spirit of the constitution,” states the Supreme Court order. “An interim order has been issued not to allow the ministers to perform their duties until the case is finalised.”
Tuesday’s Supreme Court order comes as yet another blow to Oli, as at least three of his government’s decisions have been stalled by the judiciary over the past two weeks, just as the Constitutional Bench is set to start the final hearing on petitions against his May 21 House dissolution.
With Tuesday’s order, the Oli government is left with five ministers, including himself.
The Article of the constitution the court has cited to relieve the 20 ministers of their positions states that if the Office of the Prime Minister falls vacant after the prime minister fails to win a vote of confidence or resigns, the same Council of Ministers shall continue to act until another Council of Ministers is constituted.
Oli lost a vote of confidence on May 10 after at least 28 members from his own party, the CPN-UML, decided to abstain. The Nepali Congress and the Communist Party of Nepal (Maoist Centre) as well as a section of the Janata Samajbadi Party voted against. But as many as 15 members from the Mahantha Thakur-Rajendra Mahato faction of Janata Samajbadi Party stayed neutral, as they had committed support to Oli.
Oli, however, was reappointed prime minister three days later on May 13 after the opposition alliance failed to show a majority, largely because of the Thakur-Mahato faction. Constitutionally, Oli needed to secure a vote of confidence within 30 days–by June 12. But instead, he prodded President Bidya Devi Bhandari to invoke Article 76 (5), saying there was no situation for him to garner a majority. Bhandari obliged.
When Congress President Sher Bahadur Deuba on May 21 laid claim to the government with signatures of 149 lawmakers, including 26 from the Madhav Nepal faction of the UML, Oli too went to President Bhandari, claiming that he had the support of 153 lawmakers. Bhandari disqualified both claims. Oli dissolved the House; Bhandari endorsed.
Experts and analysts say Oli had become caretaker prime minister the day he lost his vote of confidence on May 10 and that after the dissolution of the House, he was authorised only to carry out day-to-day governance.
“From the constitutional point of view, the court has made it clear that Oli is not a full-fledged prime minister,” said Bhimarjun Acharya, an advocate who specialises on constitutional law. “After dissolving the House and declaring polls, he was automatically reduced to a caretaker prime minister with a mandate to govern for just six months.”
After dissolving the Parliament for the first time on December 20 also, Oli had refused to admit that he was a caretaker prime minister and carried out a similar expansion of his Council of Ministers, which was criticised then also.
After his second House dissolution, Oli not only expanded his Council of Ministers but took a slew of decisions, which are allowed only to a full-fledged government.
Some of the decisions of the caretaker Oli government that were stalled by the court in recent days include an ordinance on the Citizenship Act, export of sand, stone and pebbles, and development of hydropower projects inside the national parks and conservation areas.
The June 4 decision to expand his Council of Ministers was taken by Oli to accommodate the Thakur-Mahato faction of the Janata Samajbadi Party.
The deal between Oli and Thakur itself was seen as a mysterious one by many as the two leaders were poles apart on many fronts. Oli is known as a leader with his aversion to Madhesis not hidden and Thakur is known as a leader who has championed the cause of the Madhes and Madhesis. When Madhes was burning in 2015, Oli was at the forefront of leading a campaign to get the constitution promulgated at any cost, while Thakur was one of the politicians leading the Tarai protests.
Oli, however, needed Thakur’s support. The Thakur faction never made it clear how it benefited by supporting Oli, except saying the government had agreed to address some of its demands on citizenship and constitutional amendment issues and release of some of its leaders, including Resham Chaudhary.
The Supreme Court, however, on June 10 issued an order to the government asking it not to implement the ordinance on Citizenship Act, saying it can have long-term implications.
“If you go by the pattern of decisions by the Supreme Court in the recent days, it clearly looks like Oli is becoming weaker by the day and this could also be an indication of restoration of the House,” said Narayan Dhakal, a writer and a political analyst, who was with the CPN-UML in the past.
Revival of the House even after Oli’s second attempt to dissolve it will be a political as well as a moral blow for him.
“At this time, we have to wait and see. Oli now has a handful of ministers from his faction. It could make it even more comfortable for him to make whatever decisions he wants,” said CK Lal, a political analyst who is also a columnist for the Post. “It’s actually a moral issue, but Oli doesn't care about morality.”
Lal also suspected if this order could be interpreted as the go-ahead for Oli for elections.
“This could also be a basis to give legality to his move of dissolving the House,” said Lal. “In the long run, the country seems to be heading towards cancellation of the present constitution. When the court, the executive and the legislature keep on fighting with each other, how can the constitution sustain?”
Of the 30 petitions against the House dissolution, one is by the opposition alliance led by Congress President Deuba filed by 146 members of the dissolved House. Of them, 23 are from the Madhav Nepal faction of Oli’s party, the UML.
The opposition alliance has demanded that the House be restored and Deuba be appointed prime minister, as he had submitted signatures of as many as 149 lawmakers before the President on May 21.
In his response to the court on June 18, Oli, however, had argued that government formation was a political process and that the court could not take a decision on such matters as that was the prerogative of the President.
Former Speaker Daman Nath Dhungana said the Supreme Court has been correcting the mistakes made by Oli and Tuesday’s order just proves that.
“But what course Nepali politics will take is still uncertain,” Dhungana told the Post. “We are living in extraordinary times. Most of the political issues that should have been settled at the political level are reaching the court.”
Tuesday’s order leaves Oli’s Council of Ministers with just four members–Finance Minister Bishnu Poudel, Education Minister Krishna Gopal Shrestha, Law Minister Lilanath Shrestha and Physical Infrastructure and Transportation Minister Basanta Nembang. All are Oli’s close confidantes from his UML party.
Apart from Oli, the other loser from Tuesday’s court order is the Thakur-Mahato faction of the Janata Samajbadi Party.
On June 4, Oli had appointed Mahato deputy prime minister and minister for urban development. Similarly, Sharat Singh Bhandari, Anil Jha, Laxman Lal Karna, Bimal Shrivastav, Uma Shankar Argariya, Chanda Chaudhary and Ekbal Miya were appointed ministers from the Janata Samajbadi Party as were Chandra Kanta Chaudhary and Renuka Gurung were appointed state ministers.
He also appointed Raghubir Mahaseth deputy prime minister and foreign minister and Sher Bahadur Tamang minister from the UML.
On June 10, Khagaraj Adhikari, Nainkala Thapa, Jwala Kumari Sah, Narad Muni Rana, Raj Kishwor Yadhav (JSP), Ganesh Pahadi and Mohan Baniya were appointed ministers. Asha Kumari BK was appointed state minister for forest and environment.
Six individuals, including senior advocate Dinesh Tripathi, on June 7 had filed separate petitions demanding that Oli’s expansions of the Council of Ministers be revoked and the new ministers barred from discharging their duties.
“The Supreme Court has stopped Oli’s intention to become an authoritarian ruler,” said Tripathi, one of the petitioners. “The Supreme Court’s recent decisions have helped bring the constitution back on track. This is a strong indication that the House will be reinstated.”
Bipin Adhikari, an expert on constitutional matters, described Tuesday’s Supreme Court decision as “bold”.
“Recent decisions, including today’s, indicate that the Supreme Court is not going to make any compromise on the constitution,” Adhikari, former dean of Kathmandu University School of Law. “The court orders in the recent past make us believe that the court believes the House dissolution is unconstitutional.”
The UML and the Thakur-Mahato faction have taken exception to the court order, saying it interfered in political matters.
“The order is uncalled for. This is neither a caretaker nor a coalition government,” said Laxman Lal Karna from the Thakur-Mahato faction of the Janata Samajbadi Party. “How can four ministers run the country ravaged by floods and landslides besides the Covid-19 pandemic, with no home and health ministers?”