Decoding the ambiguities of Article 76 (5) of the constitution

Narayan Manandhar

  • Read Time 7 min.

The ongoing legal battle at the Supreme Court over parliament dissolution and mid-term polls now seems to rest squarely on the interpretation of Article 76(5) of the constitution. This deceptively simple one-liner clause is fraught with so many ambiguities and anomalies that the whole constitutional crisis seems to rest on this clause. Before taking a deeper dive into controversies surrounding this Article, let us have a quick primer on other Articles 76(1) through 76(7) related to the formation of government and dissolution of parliament, including calls for early elections.

What the constitution says

Under the constitution, four types of governments can be formed. First, a majority government under Article 76(1). Any party securing a majority in the federal elections can form a government and there is no need for such a party to face the vote of confidence. The President appoints the leader of the parliamentary party as the Prime Minister. The Article 76.1 is straightforward—only a key point to be noted here is the appointment of the parliamentary leader as the prime minister. 

Second, if no party can secure a simple majority, Article 76(2) makes possible the formation of a coalition government. The President appoints any member of the parliament who can command a majority with the support of two or more parties as the Prime Minister. The Prime Minister has to face a vote of confidence within 30 days of the appointment. A key word to note here is appointment of any member of the parliament (MP) as the prime minister, not necessarily a leader of the parliamentary party as mentioned in Article 76(1) above.

Third, Article 76(3) makes provision for the formation of a largest party minority government. The President will appoint the leader of the parliamentary party as the Prime Minister when the coalition government cannot be formed or cannot secure the vote of confidence in parliament within 30 days. Again, the Prime Minister appointed under this Article has to face the vote of confidence in parliament within 30 days. It should be noted that this Article comes into operation only for the first time after the elections and only when a coalition government cannot be formed within 30 days.

Is the vote of confidence under Article 76(4) mandatory or can it be skipped? Should not a PM who skips the vote of confidence resign? Can the parliament be dissolved without even forming a government under Article 76(5)?

Finally, when the above three options are exhausted, Article 76(5) comes into operation. It makes provision for the formation of a government under a charismatic leader (term used by the author). Let me quote here this contentious Article 76(5):

In cases where the Prime Minister appointed pursuant to clause 76(3) fails to secure the vote of confidence pursuant to clause 76(4) and any member referred to in clause 76(2) presents a ground on which he or she is able to secure the vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.

The appointed charismatic prime minister has to face the vote of confidence within 30 days from the appointment. The key word to note in this Article is the appointment of “any member referred to in clause 76(2)”, that is, not necessarily a leader of the parliamentary party.  

In cases where the Prime Minister appointed under Article 76(5) fails to secure a vote of confidence in parliament or the Prime Minister cannot be appointed, the President shall, on the recommendation of the Prime Minister, dissolve parliament and fix a date of election within six months. This final provision is mentioned in Article 76(7).

Unlike in the past, one distinct feature of the present constitution is the emphasis on stability in government and ensuring full five-year tenure of parliament. Various types of governments are conceived so that, as long alternatives to forming governments are available, the parliament cannot be dissolved before its tenure. This principle was upheld by the Supreme Court when it reinstated the dissolved parliament in February.

The on-going debates on Article 76(5) revolve around two issues. For the sake of simplicity let us categorize them into two groups—process issues and content issues.

Process issues

There is controversy surrounding how to get into Article 76(5). Earlier court verdict speaks that as long as alternatives to forming the government are available parliament cannot be dissolved. The implied meaning here is that the Articles moving from 76(1) to 76(3) must be exhausted before getting into Article 76(5). The Oli government was first formed under Article 76(2) as a coalition between CPN-UML and the Maoist Center. After 18 months when two parties merged into the Nepal Communist Party (NCP), it was transformed into a majority government under Article 76(1). Again, with the annulment of party unification by the court in March, the government reverted to a coalition government between CPN-UML and Maoist Center under Article 76(2). After the PM’s decision to dissolve parliament in December last year, the Maoists did not support the government but neither did they formally withdraw their support. They demanded PM’s resignation on moral grounds. Finally, in May when PM Oli decided to seek a vote of confidence in parliament, the Maoists officially withdrew their support. When PM Oli failed to secure the vote of confidence in parliament, the President called political parties for the formation of a next coalition government under Article 76(2). As political parties failed to form a coalition government, the President, CPN-UML being the largest party, re-appointed PM Oli to head a minority government under Article 76(3). There is a big catch here. Article 76(3) is activated only when the government cannot be formed within 30 days of the declaration of the election results. Anybody reading this Article will come to realize that it comes into operation only once, that too, within 30 days after the declaration of election results, when a coalition government cannot be formed as per Article 76(2). Therefore, the President’s call for forming the government under Article 76(3) is unconstitutional in itself.  

On-going legal battle at the Supreme Court over parliament dissolution and mid-term polls rests squarely on the interpretation of Article 76(5) of the constitution. This deceptively simple one-liner clause is fraught with so many ambiguities and anomalies.

The government is expected to face the vote of confidence in the parliament within 30 days of appointment. However, after a week, instead of facing the vote of confidence, PM Oli recommended the President to form another government under Article 76(5) giving reason that there is no change in the political situation of the country and therefore he is not expected to garner the vote of confidence from parliament. The President issued a notice calling for the formation of the government by a charismatic leader under Article 76(5) giving a time limit of 21 hours. When the President received two applications, one from PM Oli claiming to have the support of 153 MPs from CPN-UML and JSPN and other from Nepali Congress President Sher Bahadur Deuba claiming to have 149 signatures of the individual MPs from Nepali Congress, the Maoist Centre and some members from JSPN and CPN-UML Nepal faction. As the names of 38 MPs (26 from CPN-UML and 12 from JSP) overlapped with two applications, the President nullified both applications and on the recommendation of the PM, dissolved parliament and called for elections in November.

Hosts of questions are now being raised over the process leading to the call for the formation of the government under Article 76(5), quashing of the applications by the President and finally, dissolution of parliament and call for early elections.

President Bhandari

These questions are related to: (1) PM, having been appointed under Article 76(3), skipping vote of confidence under Article 76(4), and recommending to dissolve parliament and call for early elections; (2) no resignation from the PM who failed to face of vote of confidence; (3) the discretionary power of the President to quash applications, reasoning overlapping signatures, to form the government under Article 76(5); (4) president heeding the recommendations of the PM who neither faced vote of confidence nor resigned from this position. Is the vote of confidence under Article 76(4) a mandatory or can be skipped? Should not a PM, skipping the vote of confidence, have to resign from his/her position? Can the parliament be dissolved without even forming a government under Article 76(5)?

Reading between the contents

The contents of the Article 76(5) are now being minutely analysed by the legal and political pundits. The conditions referred for the operation of this Article can be dissected into three parts:

Condition 1

The Article comes into operation when “Prime Minister appointed pursuant to clause 76(3) fails to secure the vote of confidence pursuant to clause 76(4)”. The problem is created as the PM did not stand to face the vote of confidence. Can he be forced to face the vote of confidence in parliament? 

Condition 2

The Article comes into operation when the second condition is met, that is, after “any member referred to in clause 76(2) presents a ground on which he or she is able to secure the vote of confidence in the House of Representatives”. There are two sub-issues within this condition. First, what does “any member referred to in clause 76(2)” exactly mean? Does it mean to say as a member of the party or an individual member of the parliament? This distinction is important as the lawyers supporting Oli camp interpret this to mean political party members, who cannot skip party discipline and put their signatures for the appointment of a leader from the opposition camp. They fundamentally believe that ours is a democracy of multiple political parties, we are not into the bygone party-less panchayat system where individual MPs dominate the political scene. The lawyers representing Deuba camp view this to imply individual members of the parliament. They insist that the government under Article 76(5) can be formed by any individual member who can garner a majority in the parliament.

There is also controversy over the meaning of “presents a ground”. What does that exactly refer to? Does it mean to provide a discretionary power to the President or collection of individual signatures or a party recommendation? 

Condition 3

The third condition that is “the President shall appoint such member as the Prime Minister” is also shrouded in controversy. The Deuba camp says that the condition clearly states that the figurehead President enjoys no discretionary power to quash applications; she has to appoint the Prime Minister under Article 76(5).

So what is more important: content or the process? I will leave matters related to the content aspect of Article 76(5) to the legal and political pundits involved in drafting the constitution. However, as with the process, there is a saying, “a good process may lead to a bad outcome, but it is stupidity to expect a good outcome from a bad process.”

Let me end this write up with a quizzical note from a commentator in the social media: “We have different clauses 76(1), 76(2), 76(3) and 76(5) to form different types of governments but why the same person has to be appointed as the PM under different clauses again and again? What is so unique about his character?