Nepal’s 1-Party-2-Central Committees system

How Chief Justice Cholendra Rana decides on Wednesday to deal with the 13 writ petitions against Prime Minister K P Oli’s dissolution of the Lower House will determine the next direction in Nepal’s fluid political crisis.

Rana can decide to hear the cases under a single bench presided over by himself, or order that the petitions be tried in a ‘constitutional bench’. Either way, the ball is in the Supreme Court and more specifically with Chief Justice Rana. 

If the bench rules that PM Oli’s dissolution of the Lower House was unconstitutional, it will pave the way for its reinstatement where there is a vote of no confidence pending against the prime minister. But if it decides that the Supreme Court should stay out of the current dispute because it is a political matter, then it will set a judicial precedent for the coming years.

“What the court rules will be historic one way or other, and it will have a lasting impact on Nepal’s political system,” says retired Supreme Court Justice Girish Chandra Lal. “It is also an opportunity for the Supreme Court to establish its independence and prestige, or it can take the wrong decision and derail democracy.” 

There are indications that Chief Justice Rana sees eye-to-eye with Prime Minister Oli. Rana was present at the Constitutional Council meeting last week after Oli got President Bidya Devi Bhandari to sign off on an ordinance to change the law on its quorum. That meeting made 45 appointments to various constitutional bodies.

Rana recently had a run-in with Pushpa Kamal Dahal after a written statement presented at the NCP Secretariat meeting on 12 December by Dahal, accused Oli of have secretly met with Rana at his official residence to plan a dissolution of the Lower House and to declare a state of emergency.

Faced with a possible contempt of court case, Dahal later backed down and got the Secretariat to issue a statement saying that the allegation about the Oli-Rana meeting to plan to dissolve the house was ‘based on outside reports’, and he did not want to cast aspersions on the Supreme Court. 

Whether or not Oli and Rana met in Baluwatar, there is a widespread perception that there is an unnatural closeness between the two, says another former Justice, Gauri Bahadur Karki: “The court should not be influenced by politics.” 

On the other hand, the Supreme Court and Chief Justice Rana, in particular, could also be swayed by the strong condemnation in Nepal’s public sphere against Prime Minister Oli’s dissolution of the Lower House. Which is why what the Supreme Court decides in the coming days is so crucial.

This is not the first time that a House dissolution writ is being heard in Nepal’s Supreme Court. In 1995 then Chief Justice Bishwanath Upadhyay had ruled that Prime Minister Manmohan Adhikari’s dissolution of the House was unconstitutional even though the Constitution at the time had given the prime minister the automatic right to do so. The 2015 Constitution is much more categorical in not giving the head of the government that right. 

In 1994, Prime Minister Girija Prasad Koirala had also dissolved the House after a rival faction of the Nepali Congress voted against his government, leading to early elections in which the UML came to power.

PM Oli’s move on 20 December to dissolve the House and call snap polls in April-May next year has been followed by tit-for-tat dismissals of functionaries by the two factions of the ruling Nepal Communist Party (NCP).

Nepal is now ruled under a one-party two Central Committees system. On Tuesday, PM Oli as ‘first Chair’ called a meeting of the Party Central Committee and swore in 447 new members into the party, appointed Foreign Minister Pradeep Gyawali as party spokesperson in place of Narayan Kaji Shrestha, but kept arch-rival Pushpa Kamal Dahal in the party.

Later in the day, the rival faction held its own Central Committee meeting in which it decided to take disciplinary action against Oli and relieved him from party chairmanship, replacing him with former prime minister and Dahal loyalist, Madhav Kumar Nepal. It also decided to re-instate former Speaker Krishna Bahadur Mahara, who resigned in disgrace last year after allegations of raping a colleague. 

The political feud in the NCP in the federal legislature is also trickling down to the provincial governments, where four chief ministers regarded as being close to Prime Minister Oli are facing challenges in the assemblies from the Dahal-Nepal lawmakers.

The Election Commission will now have to decide which faction can use the NCP label and election symbol, based on which side has a majority in the party working committee. Prime Minister Oli also met the Election commissioners on Tuesday, where they are reported to have proposed a single phase poll to save money in May 2021.