KATHMANDU, May 20: Constitutional experts have termed the move of President Bidya Devi Bhandari to initiate the process of forming new government as per Article 76(5) without resignation of incumbent prime minister 'unconstitutional'. 

The experts have termed that the call of President Bhandari is not only a crime against constitution, but also an attempt to sabotage the constitution itself, dissolve parliament and derail the ongoing political process in the country. They have maintained that the process to form new government as per Article 76(5) does not begin unless prime minister seeks vote of confidence in parliament and resigns in case he fails to win vote of confidence in parliament. 

Constitutional expert Bhimarjun Acharya said there is no constitutional provision to make call for the formation of new government even before the start of the process to take vote of confidence. "There cannot be recommendation to form new government unless prime minister is relieved from his position either through his resignation or his failure to secure vote of confidence," he said. "It seems the prime minister appointed as per Article 76(3) is guided by the intention to dissolve parliament."

Earlier on Thursday, Prime Minister Oli had decided not to seek a vote of confidence in parliament and ask  instead President Bidya Devi Bhandari to pave the way for forming a new government as per Article 76(5) of the constitution. 

Shortly after the decision made by the cabinet, President Bhandari invited political party leader to stake claim for the formation of an alternative government as per Article 76(5). President Bhandari has given till 5PM Friday deadline to stake claim for the formation of new government by producing bases that he or she may win the vote of confidence in parliament. 

The Article 76(5) states that if a Prime Minister appointed in his capacity as leader of the largest party in parliament fails to receive a vote of confidence within a month, the President shall appoint a member as Prime Minister, who produces bases that he/she may win the vote of confidence of the House of Representatives.

Advocate Om Prakash Aryal said Prime Minister Oli started attacking constitution the day he took oath of office and secrecy before taking of oath of office as a lawmaker. "This is the continuation of his series of attacks on the constitution. This is a case of treason," he said. "This is a crime against constitution. Those responsible for this crime deserve punishment."

Meanwhile, the main opposition party, Nepali Congress and another opposition party, CPN (Maoist Center) have condemned the move of  Prime Minister Oli. Most leaders of NC and Maoist Center have taken to social media to condemn the decision. Both NC and Maoist Center have called emergency meeting of their respective party to discuss about evolving political development after President Bhandari's call to stake claim for the formation of new government under Article 76(5).

Arguing that this is a planned move of Prime Minister Oli and President Bhandari to dissolve the parliament again, opposition party leaders have said that they should move a vote of no-confidence motion against Prime Minister Oli and impeachment motion against President Bhandari well before the parliament is possibly dissolved after 5PM Friday.

What is in Article 76 of the constitution?

76. Formation of the Council of Ministers: (1) The President shall appoint the parliamentary party leader of the political party with the majority in the House of Representatives as a Prime Minister, and a Council of Ministers shall be formed in his/her chairmanship. 

(2)  If there is not a clear majority of any party according to clause (1), the President shall appoint as Prime Minister the member of the House of Representatives who can have the majority with the support of two or more political parties represented in the House of Representatives. 

(3)  If there is a situation wherein it is not possible to make the appointment of the Prime Minister as provided for in clause (2) within 30 days of the final result of the election of the House of Representatives, or if the appointed Prime Minister, as provided for in clause (4), fails to receive a vote of confidence, the President shall appoint the leader of the party with the highest number of members in the House of Representatives as the Prime Minister. 

(4)  The Prime Minister appointed according to clause (2) or (3) shall have to receive the vote of confidence of the House of Representatives within 30 days of his/her appointment. 

(5)  If a Prime Minister appointed according to clause (3) fails to receive a vote of confidence pursuant to clause (4), the President shall appoint a member as Prime Minister, who produces bases that he/she may win the vote of confidence of the House of Representatives as provided for in clause (2). 

(6)  The Prime Minister appointed according to clause (5) shall have to get the vote of confidence according to clause (4).

(7)  If the Prime Minister appointed according to clause (5) fails to get the vote of confidence or if any member fails to be appointed as Prime Minister, the President shall, on the recommendation of Prime Minister, dissolve the House of Representatives and fix a date to conduct another election within six months. 

(8)  The procedure regarding the appointment of the Prime Minister shall have to be completed within 55 days after the post of the Prime Minister falls vacant, or the announcement of the final results of the election of the House of Representatives according to this Constitution. 

(9)  The President shall, on the recommendation of the Prime Minister, form a council of ministers consisting of members not exceeding twenty five in number from among the members of the Federal Parliament on the basis of the principle of inclusion. 

Explanation: For the purpose of this Article ‘minister’ stands for deputy Prime Minister, minister, minister of state and assistant minister. 

(10) The Prime Minister and the ministers shall be collectively accountable to the Federal Parliament, and, a minister shall be personally accountable to the Prime Minister for the works of his/her ministry, and also to the Federal Parliament. 

 
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