Kathmandu: With the recent developments, the gray areas in Nepali politics have dissolved, leaving no room for ambiguity. The time has come for intellectuals, political leaders, patriots, and common Nepalis alike to make their stand, whether they favor Prime Minister KP Sharma Oli and President Bidhya Devi Bhandari, or they are in favor of the constitution, for the nation and its greater good.
On Thursday, President Bidya Devi Bhandari has given a deadline till 5 PM Friday to the political parties to stake claim to form a new government as per Article 76 (5), after the government’s recommendation.
PM Oli was sworn in as PM only six days earlier on May 14 as per Article 76 (3). As per the constitutional provision, Oli should have received a vote of confidence within 30 days of his appointment. Thursday’s move came as an escape from the vote of confidence.
A press statement issued by the Office of the President states that Cabinet’s meeting on Thursday decided to recommend President Bidhya Devi Bhandari to “pave way” to form a new government.
With this arises a question: what compelled the government to escape the floor test in the parliamentary system? It was inevitable that article 76 (5) would be activated if the government failed to get a vote of confidence within 30 days of reappointment.
No rule, no law?
Constitutional experts are raising issues of constitutionalism after the late evening development. KP Oli’s acts of bringing ordinances, dissolving parliament, overthrowing and appointing anyone he likes clearly signifies that he is nothing less than an authoritarian ruler who claims his supremacy even by violating the rule and laws of the country. The President and the Prime Minister’s move is unconstitutional; it defies and mocks the rule of law.
The President could make a call for forming a new government only after the Prime Minister, appointed under Article 76(3), fails to get a vote of confidence within a month, tweeted constitutional expert Bhimarjun Acharya.
“The Prime Minister should resign at the first place for the President to pave the way to form a new government. The move is against the constitution as the Prime Minister is yet to resign,” said Radheshyam Adhikari, a senior advocate.
Bipin Adhikari, a constitutional expert, said the president could not appeal to form a new government unless PM Oli resigns from the post. “The process of the new government formation begins not on the recommendation of the Prime Minister but after his resignation,” he added.
The President and the Prime Minister’s move is unconstitutional; it defies and mocks the rule of law.
But the government decided to recommend the President activate another constitutional clause without taking the floor test in the Parliament session which the government today also recommended summoning for 23rd May. By this, Oli is inclined to exhaust all the alternative government formation processes set out in the constitution.
Key issues and questions
Thursday’s development is against the spirit of democracy and constitutionalism in many ways. Some of the crucial questions raised by this move are:
- President’s office is just a rubber stamp: The biggest question is regarding the integrity of the Office of the President. The recent moves of approving recommendations without proper consultations have raised the question over the role of the Office of the President. The President and its office should know that it is an institution not just an office of former UML cadres or a leader. Our constitution has a clearly defined role for the President: “The main duty of the President shall be to abide by and protect the Constitution.” In this regard, the President failed to respect the spirit of the constitution.
- Immaturity and rush: The Prime Minister has assumed that he cannot get the majority during the upcoming floor test as the last floor test result was not in his favor. A total of 93 lawmakers voted in his favor, while 124 voted against him and 15 remained neutral. The question is: Why did he take the oath under the same circumstances? What compelled him to rush and not wait for a few more days until the vote of confidence?
- Activation of another clause of the constitution without resignation: In a parliamentary democracy, moral values play equally essential roles in consolidating democratic practices and norms. Also, the PM resigns from the position first when he realizes that he is clearly in the minority. Despite being in the minority in the Parliament, Oli recommended the President to initiate the process of appointing a new PM, but he did not resign. Had the Prime Minister acted morally, he would have resigned after the Supreme Court’s verdict reinstated the House. But he continued to walk on the same imperious path of corrupt politics, disregarding the essence of the Constitution of Nepal.
- PM recommending the recruitment of another PM? If the due process was followed, the PM should have just informed the President’s Office about his resignation, and the President Office should have initiated the process. But, the PM recommended the President’s office to begin appointing the Prime Minister, activating article 76(5) of the constitution. It is ridiculous that the sitting Prime Minister recommends the President to appoint a new Prime Minister.
- Subverting parliament: Experts dub Thursday’s development as a deliberate attempt to subvert the parliament. “There is no constitutional provision that allows the President to request political parties to form a new government before the process to get a vote of confidence is initiated in parliament. The President can’t recommend forming a new government unless the Prime Minister resigns or loses the floor test,” Dr Acharya tweeted.
In a democracy, the spirit of the Constitution should also be interpreted by people’s aspirations. Those in power cannot flout provisions in their favor.
By now, it has been proved that the Oli government is hell-bent on centralizing power at a time when people are dying due to lack of oxygen and beds. PM Oli is time and again misusing his powers to serve his vested interests.
Now, it’s time to take a stand on whether to become mute spectators to Oli’s destructive and anti-democratic activities or unite and oppose such activities. Whether you are in the favor of the people, the constitution promulgated by the Constituent Assembly or you are in favor of a whimsical, senseless leader and the person standing by him as the Head of State.
What is in the article 76 of the constitution?
1) The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.
(2) In cases where no party has a clear majority in the House of Representatives under clause (1), the President shall appoint as the Prime Minister a member of the House of Representatives who can command a majority with the support of two or more parties representing to the House of Representatives.
(3) In cases where Prime Minister cannot be appointed under clause (2) no later than thirty days after the date of declaration of the final results of election to the House of Representatives or the Prime Minister so appointed fails to secure a vote of confidence under clause (4), the President shall appoint as the Prime Minister the parliamentary party leader of the party which has the highest number of members in the House of Representatives.
(4) The Prime Minister appointed under clause (2) or (3) shall obtain a vote of confidence from the House of Representatives no later than thirty days after the date of such appointment.
(5) In cases where the Prime Minister appointed under clause (3) fails to obtain a vote of confidence under clause (4) and any member under clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.
(6) The Prime Minister appointed under clause (5) must obtain a vote of confidence under clause (4).
(7) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
(8) Procedures on the appointment of the Prime Minister under this Article must be completed no later than thirty five days after the date of declaration of the final results of election to the House of Representatives held under this Constitution or the date on which the office of the Prime Minister has fallen vacant.
(9) The President shall, on recommendation of the Prime Minister, constitute the Council of Ministers comprising a maximum of twenty five Ministers including the Prime Minister, in accordance with the inclusive principle, from amongst the members of the Federal Parliament.
(10) The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and the Ministers shall be individually responsible for the work of their respective Ministries to the Prime Minister and the Federal Parliament.