Political course hinges on Article 76: How will the Supreme Court interpret it?

Nishan Khatiwada

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Kathmandu: Article 76 of the Constitution of Nepal defines the process to appoint a Prime Minister and constitute the Council of Ministers.

Since December 20, 2020, when Prime Minister K P Sharma Oli dissolved the House of Representatives for the first time, Article 76 has been the most cited, most discussed, and most interpreted (even misinterpreted) text of the constitution. Supreme Court hearings on the writ petitions filed by the opposition alliance after the House dissolution on May 22 mainly revolved around the same Article (76). 

Multiple interpretations of Article (76) started after PM Oli decided to take a vote of confidence from parliament on May 10. Oli lost the confidence motion he had tabled on May 10 as per Article 100 (1) of the constitution, which relieved him from the post as per Article 100 (3). 

Out of 136 votes required to win the confidence motion, Oli got only 93 votes. A total of 124 votes were cast against him.

On the day of Oli’s floor test, President Bidya Devi Bhandari gave three days’ time to the opposition parties to garner a joint majority and form a new government pursuant to Article 76 (2). Article 76 (2) states, “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 the House of Representatives.” 

The opposition alliance of Nepali Congress and Maoist Center failed to claim a majority to form a government and KP Oli was reappointed as prime minister on May 13 as per Article 76 (3). 

According to this Article, “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 the 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.” 

The main debate on Article 76 (5) is whether the lawmakers can act on their own discretion to form a new government or they have to compulsorily follow the
party’s whip.

CPN-UML had the highest number of lawmakers. This allowed the President to appoint KP Oli as the PM, for he was the parliamentary party leader of CPN-UML.

However, KP Oli had to win the vote of confidence within 30 days of his reappointment pursuant to Article 76 (4).  Everyone was watching how or whether Oli would win the vote of confidence. 

A week after reappointment, on May 20, instead of securing the vote of confidence from parliament as mandated by Article 76(4),  KP Oli recommended President Bidya Devi Bhandari to initiate the process for forming the new government as per Article 75 (5). He claimed that the chances to win the vote of confidence were slim at the time and, therefore, he did not have to take a floor test.

The President endorsed the recommendation on the same day. Though the constitutional experts and analysts argued that the PM had no right to recommend a process to form an alternative government without fulfilling the confidence vote condition, the process moved forward anyway.

What does Article 76 (5) say? 

Article 76 (5) states: “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.”

President Bhandari on May 20 gave the deadline until 5 PM of May 21–even less than 24 hours–to a member of the House of Representatives to stake a claim for the new government garnering a majority as per Article 76 (5). 

Leaders from the opposition political parties started rushing around, meeting each other and intensifying the discussions to secure a majority. 

But just before the opposition alliance submitted signatures of 149 lawmakers, including 26 of the Madhav Nepal-Jhalanath Khanal faction of KP Oli led CPN-UML, to the President, Oli also submitted a letter to the President with his signatures along with the signatures of Janata Samajbadi Party-Nepal chair Mahanta Thakur and the party’s parliamentary party leader Rajendra Mahato. He claimed that he had the support of 153 lawmakers. 

The opposition alliance including Nepali Congress, Maoist Center, Upendra Yadav-Baburam Bhattarai faction of JSPN, and Nepal-Khanal faction of CPN-UML, submitted their signatures later for forming a new government with Nepali Congress president Sher Bahadur Deuba as the new prime minister. 

KP Oli himself, who had recommended forming a new government based on Article 76 (5), again staked a claim. While the people were figuring out whose claim could be valid, on May 21 past midnight, President Bhandari, on the recommendation of the Council of Ministers, dissolved the House of Representatives for the second time and declared midterm elections for November 12 and 19.

Before the House dissolution, the President dismissed both the claims made by Sher Bahadur Deuba (opposition alliance) and KP Sharma Oli. The President dissolved the House and announced the elections based on Article 76 (7). Article 76 (7) states: “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 the recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of an election so that the election to another House of Representatives is completed within six months.”

After the House dissolution, on May 24, 146 opposition alliance lawmakers registered a writ petition at the Supreme Court demanding the reinstatement of the House of Representatives and appointment of the Nepali Congress President Sher Bahadur Deuba as the Prime Minister. 

The main debate on Article 76 (5) is whether the lawmakers can act on their own discretion to form a new government or they have to compulsorily follow the party’s whip. The opposition alliance insists on the former case, KP Oli and his supporters have claimed lawmakers cannot act independently without the party’s decision.

The hearings on the case concluded on Monday. The Supreme Court has decided to give a verdict on July 12. 

Everyone is watching how the Supreme Court will interpret Article 76 and its various clauses in its verdict.

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