Constitutional experts at odds over prospect of Shrestha and Gautam becoming ministers

Published On: September 4, 2020 06:06 PM NPT By: Republica  | @RepublicaNepal

KATHMANDU, Sept 4: The ruling Nepal Communist Party (NCP) Spokesperson Narayan Kaji Shrestha, who lost to the then Naya Shakti Party candidate Dr Baburam Bhattarai in the parliamentary election for the House of Representatives (HoR) in 2017 from Gorkha Constituency 2, was later elected as a National Assembly (NA) member.

Another NCP leader Bam Dev Gautam, who also lost the race for the HoR during the same election from Bardiya-1, is now set to be nominated as a member of the National Assembly (NA). The ruling party’s Secretariat meeting on Thursday decided to recommend the name of Gautam, who is also the party vice-chairman, to the upper house. As per the constitutional provision, he will be nominated by the President Bidya Devi Bhandari after the recommendation of the Council of Ministers.

Although Gautam made several attempts to make it to the lower house, he has ultimately settled for a membership of the upper house now. Gautam, who had repeatedly presented himself as the candidate for the post of Prime Minister, however, will not see his dream come true as Nepal’s constitution has the provision of electing only an elected member of HoR to the post of Prime Minister.

Gautam is now in the race of being appointed as a minister in the Prime Minister KP Sharma Oli-led cabinet, according to party insiders. PM Oli is all set to reshuffle the cabinet in a bid to settle the intra-party dispute, which surfaced in the party a few weeks ago.

Many people say that the decision of the NCP Secretariat to nominate Gautam as an upper house member is an act of undermining the people’s mandate expressed in the 2017 parliamentary election.

Professor Krishna Pokhrel, however, opined that such scenarios in the political spectrum should be taken as normal. He termed it as ‘a political management’ within the ruling NCP. “Neither constitution nor any laws restrict him to be in parliament,” argued Professor Pokhrel. “It should be understood as an effort to maintain the political equation in the NCP.”

When asked about the moral issue of Gautam and Shrestha, Prof Pokharel said that it should be left to them. “However, this usually happens in politics,” he further said. “He [Gautam] might be ready to enter the upper house after seeing a slim chance of being elected again in the next election. The NCP currently holds nearly two-thirds majority in the federal parliament. Nobody knows what might happen in the next election,” he added.  

Prof Pokhrel said Gautam still can take charge of a ministerial berth besides being appointed as a Deputy Prime Minister.

A few months ago, Gautam had reportedly rejected the offer of his nomination as an upper house member from the party. He had served as the Deputy Prime Minister and Minister for Home Affairs despite his defeat during the first Constitution Assembly (CA) election in the past.

“Constitution doesn’t restrict Gautam from becoming a cabinet minister”

Many interpret that Gautam cannot be appointed as a minister owing to Article 78 of Nepal's Constitution.

Article 78 (1), for instance, states that the President may appoint a person who is not a member of the Federal Parliament as a minister on the recommendation of the Prime Minister notwithstanding anything contained in clause (9) of Article 7. Any minister appointed under clause (1) must obtain membership of the Federal Parliament within six months from the date of taking oath, according to Article 78 (2).

A section of constitutional experts argue that Gautam cannot be appointed as a minister according to Clause 4 of Article 78. 

Constitutionalist Tikaram Bhattarai, however, argues that the constitution doesn’t bar him from becoming a minister. He argued that the provision in Article 78(4) is meant for the same person who was defeated in the election, not the one who is elected again as a member of the federal parliament.

Bhattarai further maintains that the constitution bars only those who have lost election from becoming a minister if they cannot meet the condition of becoming a member of the federal parliament within six months. Since Gautam and Shrestha have already become members of the federal parliament, constitutional provisions do not bar them from becoming ministers, argues Bhhattarai.

Related story: 

How Bamdev’s hopes to make it to parliament have been dashed every time since 2017

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