The Supreme Court on Thursday ordered Koshi’s Provincial Head to appoint CPN-UML’s provincial assembly leader Hikmat Karki the chief minister of the province within 48 hours, terming the July 27 vote of confidence secured by Nepali Congress’s Uddhav Thapa as unconstitutional.

With this, Thapa’s government has been thrown out of power.

A full bench of the apex court comprising Justices Sapana Pradhan Malla, Kumar Chudal and Nahakul Subedi issued the mandamus order to appoint Karki as chief minister within 48 hours as per Article 168(3) of the constitution, said Govinda Prasad Ghimire, information officer at the Supreme Court.

Mentioning that the role of the lawmakers presiding over the provincial assembly meeting in the absence of the Speaker and deputy Speaker is the same as that of the Speaker and deputy Speaker, the Supreme Court has said that the chair of the assembly cannot cast a vote of confidence.

“The provision that any lawmaker of the federal parliament or the provincial assembly is chairing the assembly or Parliament, if votes against the direction of the party chief whip or remain neutral, is not considered to have quit the party, has also prioritised the concept that such a lawmaker chairing the assembly should remain neutral and is not obliged to the party whip,” the verdict reads.

Thapa had secured a vote of confidence in the provincial assembly on August 21. Of the 77 lawmakers present at the meeting, 47 had voted in favour of the motion tabled by the chief minister while 30 voted against it.

Congress’ Israil Mansuri, who was chairing the assembly, had also cast his vote in favour of Thapa during the vote of confidence. Mansuri had chaired the assembly after the deputy Speaker Srijana Danuwar flew to Kathmandu on the floor test day, citing health reasons. Speaker Baburam Gautam had previously resigned from the post.

Claiming that Mansuri’s vote was unconstitutional, UML parliamentary party leader and former chief minister Hikmat Karki moved the Supreme Court on August 23. The petition by Karki was filed in the Supreme Court demanding that an order be issued to quash the incumbent ‘unconstitutional government’ formed under Article 168 (2) of the constitution and issue an order paving the way for the formation of a new government in accordance with Article 168 (3).

UML had claimed that Mansuri should have maintained a neutral position as per the Constitution and should not have taken part in the vote of confidence.

On August 24, the top court issued an interim order saying that the vote of confidence was unconstitutional due to the participation of the member who chaired the meeting and asking the Thapa-led Cabinet not to take any decision with long-term implications.

Article 186 of the Constitution states that all questions submitted for a decision in the provincial assembly shall be decided by a majority vote of the members present and participating in the voting. The member presiding over the meeting shall not have the right to vote.

If further says, “Provided that he or she may exercise his or her casting vote in the case of a tie.”

Thursday’s court verdict has clarified that Article 186 can only be invoked in case of Article 185. As per the verdict, the Article 186 can be invoked in the business of the provincial assembly which requires one-fourth of the total members and the provision cannot be invoked in case of all the constitutional provisions.

The Article 185 says unless specified otherwise in this Constitution, no question or motion shall be submitted for a decision in the Provincial Assembly unless one-fourth of the total number of its members are present.

Nepali Congress’ provincial assembly leader Uddhav Thapa was appointed the chief minister of Koshi on August 1 following the resignation of Speaker Baburam Gautam. Gautam had resigned the post earlier in the day to ensure the candidate from the alliance of parties a majority.

With the court’s order, CPN-UML will now form the new government as per Article 168(3) of the constitution. The Article provisions that if a government cannot be formed under 168 (2), the Provincial Head appoints as chief minister the parliamentary party leader of the party with most members in the assembly. The chief minister thus appointed has to seek a vote of confidence within 30 days of appointment.

With 40 seats, UML is the largest party in the 93-strong assembly.

UML chief whip at Koshi provincial assembly Rewati Raman Bhandari said as all the parties are averse to the idea of midterm elections, they will support UML to form a stable government. “We will get the vote of confidence from the support of parties from the current ruling coalition as well. As the largest party, we are open to joining hands and running a stable government. The ruling coalition must think about it,” he said.

However, the UML faces a challenging path to secure a vote of confidence given the tricky number. In the 93-strong assembly, among the opposition parties, UML has 40 seats (including the deputy Speaker) and RPP has six seats. Among the ruling parties, Nepali Congress has 29 lawmakers, Maoist Centre 14, CPN (Unified Socialist) four and Janata Samajbadi Party has one lawmaker. UML currently has the support of the RPP. But that makes only 46 lawmakers in total, including the deputy Speaker. However, the ruling coalition in its attempt to win RPP’s backing in Koshi, offered the royalist party the position of a parliamentary committee leadership last month.

The provincial assembly lacks a Speaker and due to the tricky strength of parties, none of them has shown interest to chair the Assembly.

“If the current ruling coalition remains adamant and will become the puppet of central politics, the province will head into another uncertain course,” said Bhandari.

The Supreme Court has termed Thapa-led governments as unconstitutional twice within less than a month and a half. In July, the top court had termed the formation of Thapa-led government unconstitutional as he included the backing of the then Speaker Baburam Gautam to claim majority. When his government formation was challenged, the court on July 27 ordered the Koshi Province head and the Speaker, among other authorities, to form a new government in the Province within seven days, terming then Speaker Gautam’s support to form the Thapa-led government unconstitutional.