The political ball is now in the Supreme Court. But there is more than one ball to play around. Including a very big ball thrown in by Nepali Congress President Sher Bahadur Deuba, signed by 146 lawmakers (54 percent of total MPs), there are more than two dozen writ petitions to play around. Surprisingly, there are four petitions filed in favour of Prime Minister K P Oli.
In Litigation 1.0 (the case against House dissolution of December 20, 2020), with nearly 300 lawyers lined up for the legal battle, it took more than two months for five presiding judges to deliver the verdict. During the deliberations, one of the judges had to walk out due to conflict of interest clause. Hopefully, there will be many conflict of interest as well as interesting conflicts to observe this time.
Given the intensity of political as well as summer heat outside the court room, this time no one is sure when the verdict will be delivered. Time is the only resource abundantly available in Nepal. We are habituated to making decisions at the 11th hour.
Comparing two litigations
At first sight, two litigations are similar, with almost the same issue, and with same actors and their characters. The crisis is brought about by intra-party conflict within the ruling communist party. However, there are significant differences. In litigation 1.0, Oli enjoyed some degree of legitimacy and hence authority to dissolve parliament. President Bidhya Devi Bhandari was spared from controversy. The opponents were in disarray over whether to wage battle in the streets or in the court room, whether to prepare for elections or wait for the verdict. The country faced only a mild degree of coronavirus.
Oli’s absurdity is clearly visible: one moment he speaks not having enough strength to face vote of confidence and requests the president to look for another candidate, next moment, he presents himself as a potential candidate.
Litigation 2.0 is significantly different. Politics has been polarized into two camps—Oli vs anti-Oli. We are facing humanitarian crisis due to coronavirus second wave. This time opponents are resolute in restoring parliament and opposed to the idea of participating in elections under Oli government. This is the single reason why wishy-washy Deuba has been able to line up 146 lawmakers behind him at the Supreme Court. This time, Madame President is very much dragged into controversy. If the court verdict swings in favour of Deuba, we will see, not one, but two heads to be rolled out. The President will lose her moral authority to remain in that chair.
Let us have a look on possible strengths and weaknesses of disputing parties. Remember the strengths of PM Oli are the weaknesses of Deuba and vice versa.
Strengths and weaknesses of Oli
This time PM Oli will plead that he abided by the norms of the constitution to a level of exhaustion. He followed Article 76(2) and 76(3) and was forced to skip Articles 76(4) and 76(5) without any options, he will probably argue. He will also plead he was forced to remain as PM under Article 76(3) as the opponents failed to garner required majority. Given the situation of the devil and the deep blue sea, that is, having to call budget session within a short span of time and a need to face vote of confidence, there is no choice left other than to dissolve parliament and go for fresh elections, he can reason. He will also plead pointing constitutional weirdness where neither a majority nor a minority government is allowed to dissolve parliament and seek fresh mandate from the people. A minority government is forced to face vote of confidence in the parliament; the discretionary power of the President is being questioned in the court; and in a parliamentary multi-party democracy, political parties matters more than the members.
He will also raise the issue of opponents cheating the President with fake signatories. Probably, he will also claim cheating of the signatures has forced the President to invalidate his application to form a government under Article 76(5).
He may rant his commitment to democracy and human rights, fair elections, and upholding the rights of the opposition. But his detour on achievements like erection of Dharahara or bringing Melamchi waters or construction tunnel roads, development of digital apps, vaccine procurement etc are not going to pay off anything inside the court room.
The whole world is watching political and legal eccentricities happening inside Nepal.
In the writ petition, the opponents have argued that PM Oli skipped constitutional provisions by neither resigning nor facing constitutionally mandated vote of confidence but recommending the President to search for another prime minister. His absurdity is clearly visible: one moment he speaks not having enough strength to face vote of confidence and requests the president to look for another candidate, next moment, he presents himself as a potential candidate, with a cool majority of 153 votes. Immoral acts often take place in the clout of the darkness. Any sensible mind can easily read the things cooking when decisions are made swiftly that too at the middle of the night when the country is in a lockdown situation. PM Oli’s distaste with the reinstated parliament is very visible from his acts of making it business-less and his penchant for ruling the country through ordinances.
Crux of the matter
It is with the legal eagles how the debate will unfold inside the court room. However, the crux of the debate rests on deciding whether constitutional articles on the formation of governments—Article 76(1) through 76(5)—moves in a sequential order or can be hopped or skipped to get at the final Article 76(7) where parliament can be dissolved and mid-term polls called before the expiry of five years. Who is important—a party or an individual MP—in a parliamentary multiparty democracy? Why is a minority government forced to seek vote of confidence in parliament? Are not we switching back to partyless panchayat days when we are allowed to form government under Article 76(5)? Can the Court recommend appointment of the PM?
The crux of the debate rests on deciding whether constitutional articles on the formation of governments—Article 76(1) through 76(5)—moves in a sequential order or can be hopped or skipped to get at the final Article 76(7).
The world is watching
Whatever may be the outcome of Litigation 2.0, it is definitely going to be a threesome high noon drama. The three primary actors of the law, namely, lawmakers (legislature), law executioners (executive) and law interpreters (judiciary) have been simultaneously put to a public test. Remember, during Litigation 1.0 both parties to the dispute issued threats, saying final verdict will be issued by the people, not the court. This time the intensity is even more vicious as well as ferocious. And the whole world is watching political and legal eccentricities happening inside Nepal.