When Article 76 (5) was included in the constitution, its legislative intent, according to the framers, was to enable Parliament with an extra provision to form a government to ensure that the House of the Representatives lasts for a full term.

When KP Sharma Oli was appointed prime minister in February 2018 and then his CPN-UML merged with the Communist Party of Nepal (Maoist Centre), none had thought this article would come into play within five years. But it did. And it needed an interpretation from the final interpreter of the constitution—the Supreme Court.

While deciding on petitions against House dissolution and President Bidya Devi Bhandari’s rejection of Nepali Congress President Sher Bahadur Deuba’s claim to the post of prime minister, the Constitutional Bench interpreted Article 76 (5) and ordered Deuba’s appointment as prime minister while overturning Oli’s decision to dissolve the lower house.

Article 76 (5) says: “In cases where the prime minister appointed under Clause (3) fails to obtain a vote of confidence under Clause (4) and any member under Clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member the prime minister.”

The court’s interpretation is that Article 76 (5) provides the ground for an individual lawmaker to make a claim for the prime ministerial post and that individual members, regardless of their party lines, can extend support to such a candidate if they so wish.

After being appointed as per the court order, Deuba has already won the vote of confidence in the House with 165 lawmakers voting for him—61 from his Congress party, 49 from the Maoist Centre, 32 from Janata Samajbadi Party and one from Rastriya Janamorcha.

As many as 22 members from the CPN-UML, a party led by Oli, voted for Deuba. Of them 14 were from the Madhav Nepal faction and eight lawmakers are those who were considered Oli’s loyalists.

As Deuba struggles to expand his Cabinet even two weeks after forming the government, some questions have emerged.

Is he a prime minister backed by individual lawmakers? Or is he a prime minister backed by parties? Or is he backed partially by parties and partially by individual lawmakers?

“This government clearly has a mixed support—of the parties and individual lawmakers,” Balaram KC, a former Supreme Court justice, told the Post.

Even as Deuba can easily induct the members of the parties that are backing him into his Cabinet, there is confusion when it comes to appointing those UML lawmakers ministers who voted for him in their individual capacities.

Political analysts say the present situation is so unique and complicated that it is hard to decipher.

According to Shree Krishna Aniruddh Gautam, a political commentator, the court’s verdict was limited to the formation of the government and the vote of confidence.

“We adopted a constitution that is bizarre and the July 12 verdict of the Supreme Court is strange,” Gautam told the Post. “The principle of parliamentary democracy doesn’t apply in our case.”

After the Election Commission settled the Janata Samajbadi Party dispute, awarding the party to the Upendra Yadav-Baburam Bhattarai faction, the situation has become even more complicated. Of the 32 lawmakers the Janata Samajbadi Party has, 19 are with the Yadav-Bhattarai faction and 13 with the Mahantha Thakur group. The Thakur faction can remain under the Janata Samajbadi or form a new political party.

This has added to the confusion as to how many parties and how many individual lawmakers are actually backing Deuba, and what happens if some lawmakers decided to withdraw their support.

“They can withdraw their support just as they had extended their support to Deuba,” said KC.

But there is a confusion under which article a prime minister appointed under Article 76 (5) should seek a vote of confidence.

Article 100 has the provision of vote of confidence, as its Clause (2) says: “If the political party which the prime minister represents is divided or a political party in coalition government withdraws its support, the prime minister shall table a motion in the House of Representatives for a vote of confidence within 30 days.”

But since Article 76 (5) is about showing support to an individual lawmaker by lawmakers in their individual capacities, it’s not clear whether Article 100 (2) would come into play.

Even after extending support to Deuba during the vote of confidence, the Nepal faction of the UML has not made any decision on joining the government. Talks have been going on within the UML to not let the Nepal faction break away.

As of now, Deuba has the solid backing of 129 lawmakers (61 from the Congress, 49 from the Maoist Centre and 19 from Yadav-Bhattarai faction of the Janata Samajbadi). He will be technically short of eight lawmakers for a majority should the Nepal faction decide to stay away, and if the Mahantha faction says it does not support him anymore.

Raju Prasad Chapagain, chairperson of the Constitutional Lawyers’ Forum, said the court’s verdict paved the way for both types of support—by parties and by individual lawmakers—but it did create some confusion.

According to Chapagain, the July 12 verdict cleared the confusion, saying Article 76 (5) allows individual lawmakers to use their conscience while supporting a lawmaker for the post of prime minister irrespective of the party decision. The verdict says individual lawmakers are free to make their choice even during the vote of confidence.

“However, it is unclear whether the respective parties or the individual lawmakers are allowed to make the decision when it comes to withdrawing the support,” Chapagain told the Post. “Rather than constitutional or legal, moral questions will arise when it comes to withdrawing support. It would be unethical for those who supported Deuba, in the name of saving the House and the constitution, to withdraw their support.”

But since the court has remained silent, according to Chapagain, it’s up to the parties and the individual lawmakers and they are free to decide.

But that there is confusion is apparent from divided opinions from experts on constitutional affairs.

Chandra Kant Gyawali, a senior advocate who specialises on constitutional law, told the Post that the court verdict has made it clear that party decision doesn’t count in any parliamentary proceedings linked with Article 76 (5).

He said parties cannot make decisions even in withdrawing support to the government.

“Only the individual lawmakers are free to make decisions regarding the withdrawal of the support to the government,” said Gyawali. “Deuba doesn’t need to seek a vote of confidence as long as there is ground to demonstrate his majority in Parliament.”