Oli's gambit

Nepal’s Supreme Court has been overturning Prime Minister K P Oli’s moves to remain in office one by one, even as it began crucial hearings on his second dissolution of the Lower House on 22 May.

Lawyers presenting their arguments at the Court’s Constitutional Bench on Wednesday and Thursday went beyond just questioning Oli’s moves, they blamed President Bidya Devi Bhandari for complicity.

And beyond calling for a restoration of the House, they also demanded that Sher Bahadur Deuba of the Nepali Congress (NC) replace Oli, since he had amply demonstrated a majority in the House.

The final battle in the court is the culmination of a long-drawn power struggle between Oli and comrades within the UML and his former NCP, even while the country faces an emergency with the coronavirus pandemic.

President Bidya Devi Bhandari’s rejection of Deuba’s claim to lead the government two months ago had prompted 146 politicians from a five-party alliance to file writ petitions in the Supreme Court on 24 May.

Chief Justice Cholendra SJB Rana and Justices Deep Kumar Karki, Mira Khadka, Iswar Prasad Khatiwada and Ananda Mohan Bhattarai will give a final verdict after a stipulated 32 hours of hearings over the next two weeks.

That ruling will determine whether the House is reinstated and if Deuba becomes prime minister for the fifth time, or if Oli continues as prime minister to oversee early elections in November. If the House is reinstated, the five-party alliance could also choose some other prime minister.

Like Deuba, other leaders of the anti-Oli alliance have also been prime ministers before: Pushpa Kamal Dahal (twice), Madhav Kumar Nepal, Jhalnath Khanal and Baburam Bhattarai.

The signs do not look good for Oli whose latest setback was the Supreme Court’s decision on Tuesday reversing his appointment of 20 ministersearlier this month, saying it was unconstitutional for a caretaker prime minister to do so.

In fact, Water Supply Minister Anil Jha of the JSP was being welcomed in his constituency in Rautahat on Tuesday when word came from Kathmandu that the Court had directed all Cabinet ministers to stop working. And in a show of defiance, Oli told deposed ministers they didn’t need to vacate their official residence because “something will come up”.

In the midst of a pandemic, Nepal's governing Cabinet is now down to Oli and four ministers. The third health minister in a year was among the 20 who had to step down this week after just 19 days in office.

The five-party opposition alliance decided to put pressure on Oli by launching street protests starting on Thursday. Speaking to a gathering of editors on Thursday, the NC's Deuba said: "The prime minister and president colluded at midnight to dismantle democracy and the constitution, that is why we have formed this alliance. We will mobilise the public if needed, to fight against a return to authoritarianism."

Last week, the Supreme Court overturned a Cabinet decision to amend national park regulations so that Yeti Holdings got a license to build a hydroelectric plant in Langtang. The Court also over-ruled an attempt by Oli to allow ministers to automatically become ambassadors, without having to be graduates. Then, Oli’s loyalist chief minister in the UML was voted out of the Gandaki provincial government last week by a coalition of opposition parties.

At the Constitutional Bench, the petitioners and the government’s defence lawyers have been allocated 15 hours each to present their case, after which four lawyers from an amicus curiae will be given two hours to give their opinion.

Central to the argument will be whether President Bhandari was fair in rejecting claims by both Deuba and Oli that they had a majority in the House to form a new government. On 21 May, Oli claimed he had the support of a majority in the House that he had himself dissolved earlier, by counting the total membership of his own UML and the Janata Samajbadi Party (JSP) — even those in both parties who had defected to Deuba’s camp.

Deuba presented President Bhandari with 149 actual signatures of MPs from the NC, Maoist Centre (MC) and dissidents from the UML and JSP. Only 136 votes are needed for a majority based on the current House strength.

On Wednesday and Thursday, petitioners at the Constitutional Bench argued that Article 76 (5) of the Constitution clearly stated that if a prime minister cannot demonstrate he has the confidence of the House, the president has to call on any member who can do so to form the next government.

Firebrand lawyer Sambhu Thapa argued: “Why does the president require any other proof other than the 149 signatures? Who gave the president the authority to choose her own prime minister, or take away the right of House members to vote? This is a right that was earned after a long political struggle.”

Last week President Bhandari’s office responded to a show cause from the Court with a written explanation that the Supreme Court did not have jurisdiction over the Office of the President. The President’s advisers have said that she took the decision to dissolve the House because the support of some MPs was claimed by both Deuba and Oli.

In his clarification letter to the Supreme Court, Oli argued that the Court had no role in a purely political matter.

In Thursday’s Constitutional Bench hearings, former attorney general Raman Shrestha argued that the President was claiming a right over the Supreme Court similar to what Nepal’s kings had during the monarchy days.

“This debate in the Court is not about Oli or Deuba becoming prime minister, it is about whether a Constitution drafted by an elected Constituent Assembly will remain or not,” Shrestha said.

Another lawyer Badri Bahadur Karki argued that a decision on whether Deuba had a majority support of the House or not was not up to the president. “The president invoking Article 76(5) was for the formation of an alternative government, not to reinstate the same government,” Karki argued, adding in English, “the president should have told Oli, you are no more prime minister.”

Oli, who has survived many earlier cliffhangers, probably expects the Supreme Court to reinstate the House, and he is planning to demonstrate a majority by wooing back dissident UML MPs and the JSP floor test. Oli will need at least 114 of the total 121 members of the UML as well as at least 20 from the Mahanta Thakur faction of the JSP to prove a House majority.

However, the tenor of the court hearings this week prove that they will not be satisfied with the restoration of the House — they want President Bhandari’s decision to disqualify Deuba’s claim to be prime minister revoked.