In a midnight drama, Nepal President dissolves House and calls polls for November 12 and 19

President Bidya Devi Bhandari on Friday night dissolved the House of Representatives and announced mid-term elections for November 12 and 19.

A midnight Cabinet meeting had made the recommendation to dissolve the House.

The move followed a notice from the Office of the President that it could apppoint neither KP Sharma Oli, the incumbent prime minister, nor Sher Bahadur Deuba, Nepali Congress president, as claims made by both to form a new government were insufficient.

In a notice issued at around 2am, the Office of the President said Bhandari dissolved the House of Representatives as per Article 76 (7) and declared elections in two phases—on November 12 and November 19—on the recommendation of the Council of Ministers.

This is the second time the House was dissolved in five months. On December 20 last year, Oli had suddenly dissolved the House and called for snap polls for April 30 and May 10, throwing the country into political uncertainties. However, the Supreme Court overturned his decision on February 23, calling it unconstitutional.

But a dramatic verdict by the Supreme Court on March 7, the day the meeting of the restored House was scheduled, revived the CPN-UML and the Communist Party of Nepal (Maoist Centre), invalidating the Nepal Communist Party (NCP), which the two parties had formed in May 2018. That led to more political confusion.

Oli tried his best to justify that the House had become irrelevant. He, however, ignored calls from opposition parties to step down.

Oli’s Machiavellian tricks continued and President Bhandari played complicit roles.

Oli on Thursday attacked the constitution one more time and made Sheetal Niwas initiate the process for forming a new government under Article 76 (5)—without resigning or going for the constitutionally mandated floor test after being reappointed the prime minister under Article 76 (3).

The President complied and gave the parties until Friday 5pm to stake their claim to a new government.

But in a spectacular display of brinkmanship, Oli himself reached out to the President to demand that he be appointed prime minister again.

Earlier in the day, the Congress-led alliance, backed by the Communist Party of Nepal (Maoist Centre), a section of the Janata Samajbadi Party and the Madhav Nepal-Jhala Nath Khanal faction of the CPN-UML, presented the signatures of 149 lawmakers, requesting President Bhandari to appoint Deuba as new prime minister.

But Oli too presented his claim before the President, saying he had the support of 153 lawmakers and that he be appointed the prime minister.

President Bhandari on Thursday, on the recommendation of the government, had invoked Article 76 (5) for the formation of a new government.

In a statement late on Friday night, the Office of the President said though Oli had claimed to have the backing of 121 lawmakers from the CPN-UML and 32 from the Janata Samajbadi Party, 26 lawmakers of the UML had signed the letter presented by Deuba to stake claim to the new government.

According to lawyers, Oli’s claim was not legitimate and it made a mockery of the constitution, parliamentary system, democracy and the rule of law.

Shambhu Thapa, a senior advocate, said the incumbent prime minister cannot make a claim to form a new government under Article 76 (5).

“It is for any member of the Parliament… who needs to prove a majority to form a government,” Thapa told the Post. “Our constitution is clear on this. Oli cannot claim the post of prime minister under Article 76 (5) as he has already been unseated as per Article 100(2) and Article 100 (3) after he refused to go for a floor test.”

Oli was reappointed prime minister on May 13, four days after he lost a confidence vote in Parliament, under Article 76 (3) as the leader of the party which has the highest number of members in the House.

Constitutional provisions required Oli to secure a vote of confidence within 30 days from the date of his appointment. But instead of following the mandatory constitutional process, Oli went on to make an unconstitutional move to request the President to invoke Article 76 (5), robbing the House of its prerogative.

In a statement on Thursday, the Office of the President said since the prime minister believes there is no political ground to secure a trust vote, the government has recommenced invoking Article 76 (5). Hence, the Office of the President gives until 5pm Friday to stake claim to a new government, the statement read.

Analysts wondered how a prime minister who a day ago said he lacked the votes to win the House confidence suddenly garnered the support of 153 lawmakers. And if he had the support of those many lawmakers, why did he trample upon the constitution to ask the President to invoke Article 76 (5), according to them.

Earlier on Friday, hours before he claimed before the President to have the support of 153 lawmakers, Oli, at a press conference, which was broadcast live, said that he had paved the way for the formation of a new government because there was no condition for him to win the trust vote. The Post was not invited to the presser.

Opposition parties expressed doubts how Oli had gone on to claim that he had the support of 153 lawmakers—27 more than their required number to win the trust vote. They described Oli’s Friday move as exceptional, illegal, unconstitutional and politically incorrect.

“When Oli recommended that the President initiate the process to form a new government, it was a clear admission that he was not able to secure a vote of confidence,” said Ramesh Lekhak, a Congress leader. “If Oli again goes to stake his claim to the new government, it is wrong politically, constitutionally, legally and morally.”

Moral grounds, however, do not seem to mean much for Oli, as had he followed that principle, it would have required him to step down in February—when the Supreme Court overturned his December decision to dissolve the House, calling it unconstitutional.

Constitutional experts say both the prime minister and the President colluded to trick everyone. Though the statement from the President gives a sense that a call has been made to form a new government under Article 76 (5), it goes on to call for forming a new government under Article 76 (2) based on Article 76 (5).

Though Article 76 (5), in essence, is an extension of Article 76 (2), there is a fundamental difference, according to the experts.

 

While Article 76 (2) calls on any party to seek to form a government with the support of two or more parties, Article 76 (5) calls on an individual lawmaker to do so with the support of the majority lawmakers.

When a party stakes its claim to the government under Article 76 (2), according to experts, the decision of the Parliamentary Party is as good as the decision of all the lawmakers of the concerned party. But in case of Article 76 (5), a lawmaker who wants to claim the government leadership must prove that he has the support of individual lawmakers, and a party whip is not applicable in this case.

Oli presented his claim to lead the government with signatures of his, as he is the party chair and leader of the UML Parliamentary Party; Rajendra Mahato, who is the Parliamentary Party leader of the Janata Samajbadi Party, and Mahantha Thakur, chair of the Janata Samajbadi. On this basis, he claimed to have the support of 153 lawmakers—121 from his party and 32 from the Janata Samajbadi.

But the Upendra Yadav-Baburam Bhattarai faction of the Janata Samajbadi stood against Oli and its 13 lawmakers threw their weight behind Congress President Deuba, by providing their signatures to him.

“It’s a given that President Bhandari has been complicit in Oli’s unconstitutional actions over the years,” said Raju Chapagain, chairperson of the Constitutional Lawyers’ Forum. However, in essence, the call to form a new government was under 76 (5), he added.

The opposition alliance claimed that it presented the signatures of 149 lawmakers, unlike Oli, who said he had the “support” of 153 lawmakers.

The situation itself was impossible in a parliamentary system, as the total number of lawmakers exceeds the strength of the House, which has 271 members, including the Speaker.

Oli’s political drama comes at a time when the coronavirus pandemic has engulfed the country. When Oli was reappointed on May 13 even after losing the confidence vote, political parties and analysts had said it would be better for him to focus on the fight against Covid-19, which has claimed 6,024 lives so far.

Nepal on Friday reported 8,407 new Covid-19 cases. The Health Minister said 177 deaths were reported from across the country. The number of active cases stands at 116,192.

The country currently has no stock of vaccines to inoculate its population.

Hospitals have been turning away patients for the lack of beds and oxygen. Nepalis at home and abroad have been filing online petitions to call on the global powers to provide Nepal with vaccines, oxygen, therapeutics and other medical supplies.

The Oli government has faced widespread criticism for its poor handling of the pandemic.

Only on Friday, the United Nations in Nepal called for international support to fight the pandemic.

Oli, however, after his reappointment on May 13, stoked a political storm, taking the focus away from the pandemic.

Experts, however, say who remains the prime minister is not the question, rather the question is whether both the implementer and the protector of the constitution maintain the dignity of the country’s top law.

“Oli is clearly playing the games of deceit and trickery and the President, as she has been in the past, is complicit with him,” said Thapa, the senior advocate. “What they are doing is tantamount to committing fraud.”