With the Supreme Court issuing a mandamus order to appoint Sher Bahadur Deuba as the next Prime Minister under Article 76(5) and to seek vote of confidence as per Article 76(6) of the Constitution, the constitutional crisis that has come to a boil is being staved off for a while. However, the oath-taking fiasco at Sital Niwas on Tuesday and pompous fanfare departure of K P Sharma Oli, on Wednesday, from Baluwatar to his private residence at Balkot together with his vengeance-full speech, do not bode well for the country.
The Oli supporters are in a fighting mood. This is reflected by an unfolding of ugly drama inside Gandaki Province by pro-Oli MPs together with burning of effigy of Chief Justice and chanting of foul-mouthed slogans in the rallies organized by Oli supporters.
Within 30 days from the date of his appointment, PM Deuba has to secure the vote of confidence in parliament. The Court has also ordered to call parliament within seven days from the day of order or by Sunday, 18 July, 5.00 pm.
There is a technical hitch in securing the vote of confidence. The PM appointed under Article 76(5) has to seek vote of confidence under Article 76(6) which reads as follows:
“The Prime Minister appointed pursuant to clause 76(5) shall be required to secure the vote of confidence pursuant to clause 76(4).”
However, the Article 76(4) reads as follows:
“The Prime Minister appointed pursuant to clause 76(2) or 76(3) shall be required to secure the vote of confidence from the House of Representatives within thirty days after the date of such appointment.”
There is no mention of Clause 76(5) in the Article 76(4). The Clauses 76(2) and 76(3) are meant respectively for taking vote of confidence for a coalition government and the government by a largest party. Other than for numerical ordering of the clauses, it is not clear why the drafters of the Constitution mentioned Article 76(6) after mentioning Article 76(5). In Article 76(6), it is mentioned to go to Article 76(4) when, in fact, it could have been written straight away, within Article 76(5), to seek vote of confidence as per Article 76(4). Article 76 (6) looks like a redundant clause. Anyone looking for a legal loophole can create a problem here. In defence, Prime Minister Sher Bahadur Deuba can also claim that he does not have to secure vote of confidence as per Article 76(4), for there is no mention of Article 76(5) within Article 76(4). Hope this will not happen.
Will Deuba make it?
For PM Deuba, the test of pudding lies in seeking the vote of confidence in the restored parliament. Sceptics are already speculating that, after a month, we are back to square one. In the absence of CPN-UML Madhav Nepal faction voting for Deuba, he is doomed to fail and we switch back to early elections. This is what departing PM Oli had proposed and we spent nearly two months of legal battle for nothing.
If PM Deuba secures the vote of confidence then he is safe remaining in power for 18 months of the five-year tenure of parliament. The Constitution bars filing no-confidence motion against the new government for two years. The moot question is: What happens if PM Deuba fails to secure the vote of confidence? I suppose this to be a redundant question. Here are the reasons:
First, this question is unimaginable. The Court has already ruled that every member of the parliament is free and independent to vote under Article 76(5). No party whips can be applied here. This single condition allows MPs, particularly, from Nepal faction and Thakur-Mahato faction of JSP to exercise their voting. Obviously, there is one caveat: possible horse trading, outright vote buying and who knows even kidnapping and holding the MPs to ransom? There is already news that a former minister belonging to Oli Camp, with 7-8 MPs under his fold, has approached PM Deuba for a ministerial berth in lieu of vote of confidence.
With Indian media now openly admitting that it was wrong to support the Oli government, the Mahatha Thakur-Rajendra Mahato faction of JSPN may also change their minds.
Second, the Nepal faction is morally obliged to vote for Deuba. It is reported in the media that Madhav Nepal has already assured Deuba of his voting. Going against Deuba will be like supporting the Oli government’s agenda to dissolve parliament in a roundabout fashion. Didn’t they sign to appoint Deuba as the PM and to save parliament from dissolution? What impact voting by the Nepal faction will have on CPN-UML unification? This is a matter of separate discussion and analysis.
Third, it is reasonable to give the benefit of doubt to PM Deuba. Already batteries of criticisms are levelled against him, ranging from his incomprehensive style of speaking to his past lacklustre performances to a satire on astrologist forecasting him to be PM for the seventh occasion. This is his fifth entry.
During the voting, even MPs from CPN-UML Oli faction may abstain from voting, instead of going against him. With Indian media now openly admitting that it was wrong to support the Oli government, who knows the Thakur-Mahato faction may change their minds. With the dangling of carrots of power, MPs are sure to salivate.I just mentioned a case above. And PM Deuba is a seasoned politician on this issue.
Fourth, the pandemic situation and looming third wave will favour Deuba to stay on power. Interestingly, the Court verdict is silent on commenting anything on pandemic situation, restoration of the parliament and holding of elections. It is only the Oli faction that is determined to go ahead for elections even at the time of pandemic situation. Earlier, I posited that availability or unavailability of vaccines, including the spread of coronavirus, will determine the course of Nepali politics. I still hold on to this prediction and the situation is clearly in favour of PM Deuba.
Finally, we come to the external factor. With the Chinese Ambassador making gestures that China is prepared “to collaborate with all the political parties in Nepal” and the American Ambassador becoming the first to extend his felicitation, the external wind is clearly blowing in favour of PM Deuba. If not for the works of the First Lady and the diplomat in-laws in Japan, Japanese Government is generously donating anti-Covid vaccines to Nepal. Hopefully, PM Modi will soon be calling Deuba to extend his congratulations, possibly with a program on vaccination. It is reported in the media that he is simply waiting for the results of the vote of confidence. If this is true, there is even a stronger ground for PM Deuba to secure vote of confidence.
There is no point expecting too much from PM Deuba. This is a care-taker government expecting not to last more than 18 months. If he just takes care of three viruses infecting the country—the (p)olitical virus (now I like to rename it as communist virus), coronavirus and corruption virus—I will say Deuba to be daringly successful.