A series of unconstitutional actions on the part of Nepalese Prime Minister K.P.Sharma Oli and his party colleague, and Nepalese President Bindya Devi Bhandari, forced the country’s Supreme Court to annul the dissolution of the House of Representatives, order President Bhandari to appoint the Nepali Congress leader Sher Bahadur Deuba as Prime Minister by 5 pm on July 13 and reconvene the House to hold a vote of confidence.
Oli’s followers are livid about the court’s forcing a political decision on the government. But supporters of the court’s action point out that President Bhandari, acting in cahoots with Oli, had denied Deuba an opportunity to form a government in May, dissolved parliament, and ordered fresh elections to be held in November this year.
The five-member Constitutional Bench led by Chief Justice Cholendra Shumsher Rana said that as per Art 76 (5) of the Constitution, Oli’s claim to the post of Prime Minister was untenable. Article 76 (5) does not give the President discretionary powers to appoint anybody as Prime Minister, the court said. Bhandari should have left it to parliament to decide on who had the majority required to stake a claim to form the government after Oli had failed to prove majority support.
When it was clear the Oli could not stich together a coalition commanding majority support, the President dissolved the House, without giving Deuba a chance. The bench said President Bhandari’s decision to reject Deuba’s claim to form a new government without a floor test, was unconstitutional.
Deuba had laid claim to the post of Prime Minister with signatures of 149 lawmakers, including 26 from Oli’s Communist Party of Nepal (United Marxist Leninist). Oli also made a similar claim saying he had the support of 153 lawmakers. But the issue was not put to vote and Oli was asked to continue as Prime Minister in a caretaker capacity.
Explaining the Supreme Court’s action in favor of Deuba, Anup Raj Sharma, a former chief justice, told the Kathmandu Post: “ It looks as if the bench had some apprehensions that Oli could create more problems if he is allowed more time. The judiciary has sent a strong message that Parliament dissolution is not possible on the whims of a Prime Minister.”
The Post noted that by ordering Deuba to go for a vote of confidence in the reinstated House, the bench had made an attempt to return politics to where it belongs, the political actors. The court had also sent a clear message to the Office of the President that whether a Prime Minister has a majority or not should be tested in the House where people’s elected representatives are, and not in the Presidential palace.
Background
The current crisis, which could either lead to a stable government under Deuba or fresh elections, has its roots in the inability of Oli and the Maoist leader Pushpa Kamal Dahal alias Prachanda to get along as members of the Communist Party of Nepal (CPN), which had been formed in 2008 by merging the Oli-led CPN (United Marxist Leninist) with the Prachanda-led CPN (Maoist Center).
The united CPN had swept the 2017 parliamentary elections, triggering hopes that Nepal would at last get a stable and a people-oriented socialist government. But the fond hopes were dashed quickly enough. Oli and Prachanda could not get along, with Prachanda complaining that Oli was taking decisions unilaterally making use of his political links with President Bhandari. Bhandari belongs to Oli’s CPN (UML). Oli himself was keen on spitting from Prachanda and sew up a new coalition with the Nepali Congress leader Deuba and others.
Controversial Ordinance
To make splits possible, Oli brought in an Ordinance in April 2020. The ordinance amended an existing provision in the Political Parties Act which required 40% support from both the party Central Committee and the Parliamentary Party in order to split. After the Amendment, a split vote would only require 40% support from “either” the Central Committee or the Parliamentary Party. The Ordinance was to help Oli split the CPN.
But the Ordinance were unpopular even among Oli’s party and cabinet colleagues. And Prachanda said that Oli had not consulted him at all. Oli was able to introduce the Ordinance because he had the support of his party colleague and President Bidya Devi Bhandari.
Given the all round opposition the Ordinance created, it was later withdrawn. But Oli would not stop trying to split from Prachanda and going it alone. In December 2020, Prime Ministee Oli recommended the dissolution of the House of Representatives and calling for fresh elections on April-May 2021. This was readily endorsed by President Bhandari.
However, this decision was overturned by the Supreme Court on February 23, 2021, when a constitutional bench led by Chief Justice Cholendra Shumsher Rana deemed the dissolution of the House to be unconstitutional, and called for the House to be reinstated and a meeting of the Parliament to be held within 13 days. Oli accepted the verdict and called for a meeting of the parliament on March 7, 2021.
On 7 March 2021, the Supreme Court delivered another landmark ruling annulling the merger of CPN (UML) and CPN (Maoist Centre), thus recreating the CPN (UML) and CPN (Maoist Centre). While the ruling on dissolution of parliament went against Oli, the annulment of the 2018 merger both suited him eminently.
However, on May 10, 2021, Oli failed to obtain a vote of confidence getting only 93 of the total 232 votes cast in the House of Representatives, which fell 43 votes short of reaching the 136-vote majority required to win the confidence vote.
Oli was appointed Prime Minister for a third time on May 13, 2021 by the President, albeit as the head of a minority government. As per the President’s view (which was also Oli’s view) none of the opposition parties were able to lay a credible claim to have majority support. On the advice of Oli, the President dissolved the House of Representatives on May 22, 2021. The Oli government turned into an interim government until new elections are held, which were scheduled for November 12 to 19, 2021.
These decisions were overturned by the Supreme Court on July 12. It said that the President had failed to entertain Nepali Congress leader Deuba’s claim to form a government and give him a chance to prove majority support.
Commenting on the developments, Kathmandu Post said the following in an edit on July 13: The role played by President Bidya Devi Bhandari in authenticating Prime Minister Oli’s undemocratic activities cannot be forgotten. For each of Oli’s misadventures, there was President Bhandari acting as a rubber stamp rather than as a check-and-balance institution. President Bhandari’s term will be remembered as a textbook case of how a constitutional head can turn against the constitution.
Together, the Oli-Bhandari duo used every trick in the book to push the country into one crisis after another even as they pursued a politics of vengeance. But the game Oli and Bhandari played is nothing new in Nepali politics. What is to be remembered is that the individuals into whose hands the mantle of democracy has been transferred are the ones who have a history of derailing the democratic process in their own right.”
