The Supreme Court has removed Uddhav Thapa from the post of chief minister of Koshi Province after concluding that the formation of the Nepali Congress-led provincial government was unconstitutional.

A full bench of justices Ishwar Prasad Khatiwada, Ananda Mohan Bhattarai and Til Prasad Shrestha has also directed the chief of the Koshi Province and Speaker of the provincial assembly to appoint a chief minister of a coalition government within seven days. The province will get a minority government if another coalition government cannot be formed within the deadline.

The Khatiwada-led bench, however, has refused to reinstate CPN-UML’s parliamentary party leader Hikmat Karki as the chief minister. “If the chief minister appointed as per Article 168 (2) fails to get a vote of confidence, a new chief minister will be appointed as per Article 168 (3). Therefore, it is not necessary to issue an order to appoint the plaintiff as the chief minister,” reads one of the points in the verdict.

Parshuram Khapung, the chief of the province, on July 6 had appointed Thapa as Karki’s successor after the ruling alliance produced the signatures of 47 lawmakers including Baburam Gautam, Speaker of the assembly. Thapa became chief minister of a coalition government as per Article 168 (2) of the constitution.

The opposition parties had strongly objected to the inclusion of the Speaker in the government formation process saying that the head of the assembly can’t take sides and support a political party to form government. They had also accused Khapung and Baburam Gautam, Speaker of the assembly, of siding with the ruling alliance.

Signatures of 29 lawmakers from the Congress, 13 from the CPN (Maoist Centre) including the Speaker, four from the CPN (Unified Socialist) and one from the Janata Samajbadi Party were submitted to the provincial head. Without Speaker Gautam’s support, the coalition would be one vote short of the majority required to form the Thapa-led government.

Objecting to Gautam’s active role in government formation and Khapung’s subsequent endorsement of the process, Karki on July 7 had moved the Supreme Court demanding Thapa’s removal and his reinstatement as chief minister. As demanded by the petitioner, the Supreme Court has said Gautam cannot play any part in government formation.

“Baburam Gautam resigned from his party on January 12 after becoming Speaker,” reads the verdict. “The Speaker has a role of a referee or an umpire which is why Article 186 says one chairing the provincial assembly cannot cast a vote. The Speaker can cast a decisive vote only when there is a tie.”

In his response to the court’s show cause notice earlier, Gautam had claimed that he put down his signature for the purpose of forming government in the capacity of a lawmaker, not as Speaker. He had also claimed that there were instances in the past where the Speaker supported government formation.

The full-bench, turning down his claim, has said the Speaker taking sides and supporting a particular party in the government formation process means s/he has failed to play a neutral role. “In parliamentary practice, there is no instance of government formation through Speaker’s support,” according to the verdict. The full-bench passed the verdict after three days of continuous hearing.

According to the court, as long as there is a possibility of forming a government under Article 168 (2), the government formation process must commence from the same point. Now any lawmaker, who has the support of a minimum of 47 lawmakers in the 93-strong provincial assembly, can stake claim to government.

If there is no change in the existing political alliance in the province, a coalition government cannot be formed. The ruling alliance of the Congress, the Maoist Centre, the Unified Socialist and the Janata Samajbadi parties have 46 lawmakers combined. The opposition alliance of the UML and the Rastriya Prajatantra Party has the same strength, with 40 and six lawmakers respectively. Either of the alliances needs the support of at least one additional lawmaker to claim government leadership. Both the Congress and the UML have said they will form the government. However, they have failed to present the ground for it.

The UML, as the largest party in the provincial assembly, will get to form the government as per Article 168 (3), if no alliance can present the support of 47 lawmakers.

Article 168(3) says if a government cannot be formed under 168 (2), the province head will appoint as chief minister the parliamentary party leader of the party with the highest number of members in the provincial assembly. The chief minister of such a minority government must secure a vote of confidence within 30 days.

If the UML-led government fails to win the confidence of the assembly, the province will head for snap election, although Article 168 (5) gives the last option to a lawmaker in the assembly to make a claim presenting the support of a majority of lawmakers.