Nepal Constitutional Crisis: What happens after 5 PM today?

Published On: May 21, 2021 12:54 PM NPT By: Kamal Subedi  | @Inspiredkamal

KATHMANDU, May 21:Though Prime Minister KP Sharma Oli was supposed to obtain a vote of confidence from parliament as per Article 76 (4) of the Constitution of Nepal after his appoint as the Prime Minister in accordance with Article 76 (3),  his Cabinet on Thursday recommended to President Bidya Devi Bhandari to initiate the process for new government formation as per Article 76 (5) citing that the incumbent government ‘has a slim prospect to win the trust vote amid the current political situation’. 

President Bhandari, immediately after being ‘requested’ by the Cabinet, asked the members of parliament to stake claim for the premiership as per Article 76 (5). This has sent a wave of ripples in domestic politics which has gone through several ups and downs in the past few months after Prime Minister KP Sharma Oli unconstitutionally dissolved the House of Representatives on December 20 last year. 

President Bhandari allotted a time of 21 hours to form a new government and members of parliament are required to stake claim for the new government and provide enough grounds of support from the majority lawmakers by 5 PM on Friday. 

What after 5 PM ?

While the Cabinet members and leaders of the ruling CPN-UML, who are close to PM Oli, claim that the incumbent government is less likely to win parliament’s trust and it is justifiable to call upon the lawmakers to  present their claims for a new government, the leaders of opposition parties and legal eagles argue that the president’s call for new government formation goes against the letters and spirit of the constitution. 

Constitutionalist Dr Bhimarjun Acharya said that Thursday’s move by President Bhandari is unconstitutional. He advised the political parties not to accept the call and initiate the process to claim to form a new government. “As the move by the president was unconstitutional, they [parties] should not be engaged in a race to claim the premiership. They should try to impeach the  president,” he told Republica over the phone. According to Acharya, the political parties should announce the president’s call as an unconstitutional one. 

Acharya said that any member of the political party can stake claim for new government formation as per Article 76 (5). One can either receive support from political parties or the members of parliament or both.  “However, this is not an issue to be discussed at present. What should be pondered over now is that the president and prime minister both have sabotaged the constitution.”

When inquired about the possible motive of PM Oli behind this move, Dr Acharya said that Oli must be driven by a motive to dissolve the House and justify his December 20 move. “He might be preparing to impose a state of emergency in the name of the COVID-19 ciris and curtail political rights,”  he said. 

Advocate Om Prakash Aryal also stated that the president’s Thursday’s call goes against the constitution. According to him, President Bhandari’s initiative for the process of forming a new government as per Article 76(5) without the resignation of the incumbent prime minister is unconstitutional. The president can call upon the political parties to form an alternative government in three conditions --- 1. If the PM resigns,  2. If the PM passes away and 3. If the PM loses a trust vote. “As long as the position of the Prime Minister is not vacant, how can other members of the party join the president's unconstitutional move?”

Aryal argued that the president and prime minister have committed a crime against the constitution. “Therefore, I suggest  the political parties wage both the political and constitutional fights against this crime which may attract Article 50 of the Criminal Code-2017,” he said. 

When asked about the likely scenario after 5 PM, Aryal said that the allotted time frame is also not in line with the constitution. He argued that the President should have given a maximum of 35 days for the formation of a new government as per Article 76 (8). “After 5 PM, parliament is likely to dissolve. But the political parties should fight legally and politically to annul the unconstitutional move by the president and the prime minister. 

Aryal shared that unlike the office-bearers of constitutional bodies, the president is not relieved from his/her position though an impeachment motion is registered against him/her.  “It means President Bhandari can still remain in power and discharge her authorities until the motion is voted upon.” 

The scenario suggests that if the opposition parties including the Nepali Congress (NC), CPN (Maoist Center) and Janata Samajbadi Party (JSP) fail to forge a consensus and put together the support of majority lawmakers, parliament is likely to be dissolved as per Article 76 (7). At the same time the dissident faction of the UML, led by senior leader Madhav Kumar Nepal, is surprisingly silent following the latest development. Similarly, a faction of the JSP, close to Chairman Mahanatha Thakur and Rajendra Mahato, too is reportedly not joining the opposition alliance. 

It is still elusive how politics will move ahead. Despite the fact the country is being ravaged by the surging fears of the coronavirus pandemic, a series of political dramas has been haunting the people time and again.  

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