Legal path to new Nepal government

Nepal’s Supreme Court on 23 February reinstated the House of Representatives and ordered Parliament to convene within 13 days. The President, on the recommendation of Prime Minister KP Oli, will now decide when and how within the next 10 days Parliament will come into session. 

In the UK, any government that dissolves the House of Representatives becomes a caretaker government, and as such, the prime minister in such a circumstance is deemed  to have resigned. However, the right to dissolve the House of Representatives is no longer constitutional either in the UK or in Nepal. 

The steps that President Bhandari takes in the upcoming days will depend on whether she considers PM Oli a caretaker prime minister or the preceding prime minister. If it is the former, the president, as per the provisions of Article 76 of the Constitution, must immediately begin the process of forming a new government by appointing a new Prime Minister in consultation with the leaders of all parliamentary parties in the House. During this process, the caretaker Prime Minister, like the leaders of other parliamentary parties, is entitled to form a new government as the leader of their party.

If, however, the president considers KP Oli a preceding prime minister, she may direct him to take a vote of confidence in the House of Representatives under Article 100 of the Constitution, which provides that the prime minister may table a motion at any time, if he deems it necessary or appropriate, to make it clear that he has the trust of the House.

If the president agrees, the prime minister can continue the government with a vote of confidence in the House. Article 76 will only apply if the prime minister fails to obtain a vote of confidence.

If the prime minister chooses not to follow either of those paths, Article 100 (4) of the Constitution allows one-fourth of the members of the House of Representatives who are present in Parliament to table a motion of no-confidence in writing.

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However, the process might be politically challenging as the motion must include the name of the next proposed prime minister. If the no-confidence motion is passed by a majority in the House of Representatives, the Prime Minister will be relieved of his post.

In this political climate where the ruling NCP is bitterly divided, the Dahal-Nepal faction is demanding that Oli resign on moral grounds. The Election Commission has also not decided which faction of the NCP is the main party and which is the breakaway faction, while PM Oli maintains that he is the party chairman until the NCP general convention. As such, no party in the House of Representatives is in a position to form a unanimous government, and the next prime minister will have to form a coalition with two or more parties.

It remains to be seen how much support Pushpa Kamal Dahal will get from his co-chair Madhav Kumar Nepal or Jhala Nath Khanal in his bid to become prime minister. Even with their support, chances of him forming a coalition government are unlikely if the Nepali Congress (NC), the second-largest majority in the House of Representatives, refuses to participate in the process.

If NC President Sher Bahadur Deuba is to take the lead in forming a coalition government, then the Dahal-Nepal faction will need to justify its opposition to Prime Minister Oli on other grounds.

The NC itself is in a dilemma over which faction of the NCP it should support. If the NC chooses to support the Oli faction, it could move towards forming a coalition with the current government. And even if it becomes part of a coalition government, the NC might not consider the premiership to be the endgame and choose instead to focus on the election. 

There are other strategies in which the NC might decide not to join the Oli-led coalition but to support his government from the outside, or choose to form a government led by Sher Bahadur Deuba while seeking support from the Oli faction. The challenge for the NC now is to decide what is constitutionally sound while being in the party’s best interests long-term.

At this point, unity within the NCP leadership is unrealistic, and either faction will require a 40% agreement from the Central Committee and the Parliamentary Party should Oli or Dahal choose to register a new party.

The only way to avoid a period of political turmoil is the unlikely scenario that ageing leaders in both factions realize that such instability is not in the national interest and hand over the reins to a new generation of young leaders.

                   Bipin Adhikari, PhD, is an expert on constitutional law.

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