Category: Quotes

६ चैत, काठमाडौं ।

निर्वाचन आयोगले राप्रपाको विधानबाट राजतन्त्र र हिन्दुराज्य हटाई दिएपछि यसले नेपाली राजनीतिमा नयाँ तरंग पैदा गरेको छ ।

आयोग आफ्नो निर्णयबाट पछि नहट्ने अडानमा छ भने सरकारमै रहेको राप्रपाले आन्दोलन घोषणासँगै कानूनी उपचार खोज्ने बताएको छ ।

निर्वाचनको मुखैमा आएको यो तरंगले कतै स्थानीय तहको चुनावलाई नै असर गर्ने हो कि भन्ने अड्कलबाजी हुन थालेका छन् । आयोगले कत्तिको जायज काम गर्यो त ?

आयोगको निर्णयले राप्रपालाई बल पुग्छः संविधानवीद डा. अधिकारी

संविधानविद डा. विपिन अधिकारी भन्छन्, ‘आगोगले संविधानको धारा ४ लाई अघि सारेर राप्रपाको विधान संसोधन गर्ने काम गरेको छ, त्यो उपयुक्त देखिदैन । संविधान र राजनीतिक कारणले पनि रोक्न मिल्दैन ।’

आयोग आफ्नो निर्णयलाई पुर्नविचार गर्ने अवस्थामा देखिन्न । राप्रपाले कानूनी उपचार पनि खोज्ने बताएको छ, । त्यस्तो अवस्थामा अधिकारीको बुझाईमा अदालतले परमादेश जारी गरेर आयोगको रोकतोक फुकाईदिन सक्छ ।

‘जनताको बीचमा आफ्नो एजेण्डा लिएर राप्रपा जान सक्छ, संविधानविद डा. अधिकारी भन्छन्, ‘त्यसले हिन्दु धर्मलाई राज्यको धर्मको रुपमा स्थापित गर्न वा राजनतन्त्र फर्काउन चाहनेहरुलाई बल पुग्छ । त्यता तिर सचेत हुनुपर्छ ।’

The Supreme Court is yet to initiate hearing on the writ petition against the controversial appointments to constitutional bodies around three months since the candidates were recommended, raising questions about the intention of the court, petitioners and legal experts have said.

On December 15 last year, a meeting of the Constitutional Council, based on a controversial ordinance, recommended dozens of names for appointment to 11 constitutional bodies including the Commission for Investigation of Abuse of Authority and the Election Commission.

Despite at least three petitions being registered against the constitutionality of the ordinance and the appointments made on its basis, Chief Justice Cholendra Shumsher Rana not only attended the meeting that recommended the names but also administered the oath to the appointees.

Chief Justice Rana on February 3 administered the oath of office to 32 individuals who were appointed even without parliamentary hearing, a statutory requirement for appointments to constitutional bodies.

Advocate Om Prakash Aryal, one of the writ petitioners, has listed the chief justice among the defendants. Two other writ petitions have been registered at the court against the ordinance and the appointment process.

The Supreme Court not hearing the case in which the chief justice himself is a defendant even for a single time has raised questions about its intention, legal experts said.

Bipin Adhikari, former dean at Kathmandu University School of Law, told the Post that the chief justice should have facilitated an early hearing on the case given that questions have been raised about himself from different quarters after he joined in recommending the names and swearing in those appointed in a controversial arrangement.

“Many people are questioning if the court’s continued delay in the case is politically motivated. The case should be heard even to show that the court is independent,” said Adhikari. “The court’s continued delay raises questions if the chief justice does not want to be tried.”

Many commentators termed the Supreme Court’s February 23 verdict to reinstate the House of Representatives controversially dissolved by President Bidya Bhandari following recommendations by the KP Sharma Oli Cabinet as bold and held this as evidence that the country’s court remains outside the influence of the executive.

“The trust earned by the Supreme Court after this verdict could be eroded if the court continues to delay hearing on the controversial decision of the Constitutional Council whose constitutionality has been challenged,” said Adhikari.

Like House dissolution, this case too needs to be heard by the constitutional bench, which is led by the chief justice. Many legal experts have questioned whether the chief justice chairing the constitutional bench in this case would be against the principle of natural justice. As per the principle, party to a dispute cannot sit on a bench that is tasked with delivering justice.

“Ever since the constitutional bench on February 23 issued a verdict to reinstate the dissolved House of Representatives, no meeting of the constitutional bench has taken place,” said Samrit Kharel, one of the petitioners against the appointment process. “Even though the court has been incorporating the case in its cause list every Friday since it delivered its verdict to reinstate the House, no hearing has been initiated.”

Advocate Aryal said the case was not heard even though the Supreme Court incorporated the petition in the cause list 13 times since it was registered on December 16 last year.

After the petitions were filed at the Supreme Court challenging the council’s recommendations, the petitions were sent to the Constitutional Bench to test the constitutional validity of the recommendations.

The chief justice is responsible for conducting hearing but no effort has been made so far towards that end. “This has raised questions if the chief justice is obstructing justice,” said Aryal.

Days before he dissolved the House, Oli on December 15 had introduced an ordinance, amending some provisions of the Constitutional Council Act concerning the quorum for meeting and making recommendations.

As per the constitution, the Council is led by the prime minister with chief justice, House Speaker and deputy Speaker, National Assembly chair and the leader of the opposition as members.

The ordinance introduced a provision that the quorum to hold a meeting would be enough if three of the members including the chairperson or prime minister were present and a majority of those in attendance could take a decision.

Following that, even in the absence of the opposition leader and the Speaker, the council meeting represented by the prime minister, the chief justice and the National Assembly chairperson made the recommendations.

The selection of candidates came in such a way that they could be appointed without getting through parliamentary hearing. The House was dissolved soon after the council meeting.

Article 292 of the constitution provisions parliamentary hearing of judges to be appointed by the Judicial Council and those to be appointed to constitutional bodies by the Constitutional Council.

With the President dissolving the House, the parliamentary hearing committee also ceased to exist. The government, however, went ahead with the appointments, saying that 45 days had passed since the recommendations reached the Parliament Secretariat.

Rule 26 (2) of the Joint Parliamentary Meeting Regulation of the federal parliament says there will be no obstruction for the recommended people to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the Council’s letter. The appointments were made before the court reinstated the House and all those appointed were spared parliamentary hearing.

Laxman Lal Karna, who headed the hearing committee, told the Post in early February that the rule was misinterpreted to make the appointments.

“The 45-day period stands only if the hearing committee had started its process and failed to complete the hearing,” Karna had told the Post.

What many were expecting the Election Commission to do, the Supreme Court did on Sunday, but with such an order that it has created more political confusion.

A division bench of Justices Kumar Regmi and Bom Kumar Shrestha passed its judgment in favour of Rishiram Kattel who had challenged the Election Commission’s decision to award the Nepal Communist Party (NCP) name, NCP within brackets, to KP Sharma Oli and Pushpa Kamal Dahal, saying that “Nepal Communist Party” was already registered under his name back in 2013.

After initially refusing to award the Nepal Communist Party name to Oli and Dahal, saying that a party with the same name was already registered with it, Oli and Dahal had got their party registered as Nepal Communist Party (NCP) in June 2018 after the UML and the Maoist party announced their merger in May that year.

The court on Sunday not only called the Nepal Communist Party (NCP) illegitimate but also annulled the CPN-UML and the Communist Party of Nepal (Maoist Centre)’s merger and ruled that their status remains as before their merger. In other words, the court revived the erstwhile UML and the Maoist party, which were led by Oli and Dahal, respectively, before May 2018.

The court decision has created more confusion as Nepal’s politics has got too far three years since the Nepal Communist Party (NCP) came into existence, and become messier.

The Nepal Communist Party (NCP) is currently divided—but not along the UML and Maoist Centre lines. Many former UML leaders including former prime ministers Madhav Kumar Nepal and Jhala Nath Khanal are on Dahal’s side. Some of the former Maoist leaders including Ram Bahadur Thapa, the incumbent home minister, and Top Bahadur Rayamajhi, the incumbent energy minister, are on Oli’s side.

The Nepal Communist Party (NCP) legitimacy dispute had been with the Election Commission for quite a while with both factions led by Oli as well as Dahal and Nepal staking claim to the party.

Questions are now being asked which party Prime Minister Oli belongs to.

“Today’s verdict has effectively annulled the merger of the CPN-UML and the Maoist Centre. Hence, the prime minister now belongs to the CPN-UML,” said Bhimarjuna Acharya, a constitutional lawyer. “This verdict has made Oli very much powerful but he needs to get the confidence of Parliament. His election as prime minister was under Article 76 (2).”

When Oli was elected prime minister in February 2018, he was the leader of the UML and he had formed his government under Article 76 (2) of the constitution, which says the President shall appoint a member of the House of Representatives, who can command majority with the support of two or more parties represented in the House, as prime minister.

But after the merger of the UML and the Maoist Centre in 2018, Oli became the leader of the Nepal Communist Party (NCP).

The CPN-UML, however, is currently registered in the name of Sandhya Tiwari, a nurse by profession, who is from Biratnagar. The party was registered on August 19 last year, and many believe it was done at the behest of Oli.

Dev Gurung, a former Maoist leader belonging to the Dahal-Nepal faction, said the court decision has created a host of political complications.

“Some Maoist leaders have joined Oli and some UML leaders have joined Dahal,” said Gurung.

There is confusion now if former UML leaders including former prime ministers Nepal and Khanal will continue to remain with Dahal under the Maoist Centre. Similar is the case with former Maoist leaders who are with Oli. Will Thapa, Dahal’s close ally during the “people’s war”, stay with Oli under the UML?

Many say the overall political process appears to be set to hit a cul-de-sac.

For example, the question now arises from which party the House Speaker was elected.

When Agni Sapkota was elected in the third week of January, he was fielded as a candidate of the Nepal Communist Party (NCP). With no Nepal Communist Party (NCP) in existence now after the court order, there is confusion if his position remains. And if so, from which party he was elected needs to be sorted out as deputy speaker cannot be given to the same party which sent the Speaker as per the constitutional provisions.

Some lawmakers were elected after the formation of the Nepal Communist Party (NCP) while some, including Narayan Kaji Shrestha and Bamdev Gautam, were appointed to the National Assembly. What happens to their status is not clear yet.

“There is nothing for us now to do when it comes to the dispute in the Nepal Communist Party (NCP),” Dinesh Thapaliya, chief election commissioner, told the Post. “We will have to notify the concerned parties [CPN-UML and the Communist Party of Nepal (Maoist Centre)] that their merger is no longer valid.”

While annulling the parties’ merger, the bench, however, has also said that if they want to unify [again] they can do so as per the Political Parties Act.

It is not clear how possible that scenario is, as the Nepal Communist Party (NCP)’s political split entails a lot of complications.

The Dahal-Nepal faction has taken umbrage at the court verdict and the Oli faction has accepted it, contrary to what happened on February 23. When the Supreme Court overturned the House dissolution decision, the Dahal-Nepal faction welcomed the decision, the Oli faction had reluctantly accepted it.

Dahal said on Sunday evening that the decision was “unexpected” and that his party was consulting with legal experts and would take a decision from a meeting of the Standing Committee on Monday after studying the verdict.

Leaders of the Oli faction said they would abide by the court’s verdict.

“They [Dahal-Nepal] had said the previous verdict of the Supreme Court was historic. Today they are talking differently,” said Subas Nembang, a close confidante of Oli. “We accept both the verdicts.”

Now that the “ruling” party has been split by the court into the UML and the Maoist Centre, Oli will have to seek a vote of confidence in Parliament, as the equations have changed.

In the 2017 elections, the UML had won 121 seats in the lower house and the Maoists 53. If the Maoist Centre withdraws its support, Oli cannot remain prime minister unless he gets support either of the Nepali Congress or the Janata Samajbadi Party. Since Madhav Kumar Nepal also controls some of the UML lawmakers (around 40), his decision to side with the Maoists may mean Oli will have to seek the Congress party’s support to remain in power.

The Nepali Congress, which so far had been saying that it would take a decision only after there is a formal split in the Nepal Communist Party, has not said anything on the court verdict.

The Congress party’s expectation was the Election Commission would award the party either to the Oli faction or the Dahal-Nepal faction. But the Supreme Court decision has completely changed the scenario.

Gurung of the Dahal-Nepal faction said that they would definitely explore the option of withdrawing support to Oli.

Ram Narayan Bidari, a member of the National Assembly who is close to the Dahal-Nepal faction, said the court had given more in its judgment than the writ petitioner had demanded, creating more complexities.

“The Supreme Court has no authority to annul the merger of two parties though it can quash its name,” Bidari told the Post. “The verdict is practically impossible to implement so it should be corrected through a judicial review.”

Senior advocate Tikaram Bhattarai said Sunday’s verdict of the division bench could undergo a judicial review on three bases—it contradicts the Constitutional Bench’s February 23 verdict that says the Oli-led government was formed under Article 76(1) which means it recognised the merger of the two parties. Secondly, according to Bhattarai, the court has given more than what the petitioner demanded, as the petitioner just wanted to have Nepal Communist Party under his name. The petitioner did not ask for reviving the UML and the Maoist Centre; he rather demanded that the Election Commission decision to give Nepal Communist Party (NCP) to Oli and Dahal be annulled, according to Bhattarai.

Third, said Bhattarai, so many activities have been carried out under the name of Nepal Communist Party (NCP) so it is practically impossible to undo them.

The Dahal-Nepal faction, according to some leaders, has already started holding consultations with legal experts regarding seeking a review of the court verdict.

Seeking a review of a decision of a divisional bench is a legitimate process, but experts say it might have little significance as it’s a lengthy process.

“If the Dahal-Nepal faction wishes, it can definitely go for a review of today’s judgment. But will it have any significance? I doubt it,” said Acharya, the constitutional lawyer. “This verdict has caused a new constitutional chaos, which will drag the judiciary into controversy again.”

And while the UML now is registered with Tiwari and the Maoist Centre under Gopal Kirati’s name, it’s not yet clear how the court order to take the UML and the Maoist Centre to pre-May 2018 is possible.

“Since we cannot annul the registration of any party, we will request them [Sandhya Tiwari and Gopal Kirati] to get other names and election symbols,” said Thapaliya, the chief election commissioner. “If they fail to come up with any other names, we will give their parties other names and election symbols.”

The Supreme Court’s verdict, in general, looks like it has brought things back to square one, but meanwhile, it also appears to have tried to turn the clock back. And that’s practically impossible, experts say.

Things have changed a lot from the time when there were the UML and the Maoist Centre as different parties, according to Bipin Adhikari, former dean of Kathmandu School of Law.

“It’s not incumbent upon the Election Commission how it deals with the situation,” Adhikari told the Post. “The commission has to implement the verdict in such a way that Parliament can function properly.”

When the framers of Nepal’s constitution and lawmakers were writing constitutional provisions and laws, their focus was on ending the vicious cycle of political instability that had plagued the country for decades. And rightly so, their focus was on framing the constitutional provisions and laws so as to ensure stability. While paying excessive attention to that fact, the lawmakers, however, appear to have made a massive oversight, which has been exposed now.

What started as a good intent has led the country to the same situation which they wanted to end.

Nepal’s lawmakers deliberately incorporated some difficult provisions in the Political Party Act regarding the party split. Past experiences suggested politicians were quick to split a party, switch sides or register a new party.

Hence, they wrote Section 33 (2) in such a way that it made party splits difficult.

Section 33 (2) of the Political Parties Act-2017 says a new party can be formed by splitting a party with the support of at least 40 percent members of the Parliamentary Party and the Central Committee of the existing party.

Today, the Nepal Communist Party, which emerged as the largest force in the country after the 2017 elections, is facing a crisis. It is split into two politically. But it’s legal split has become complicated.

Both the factions led by Prime Minister KP Sharma Oli and Pushpa Kamal Dahal and Madhav Kumar Nepal claim to have control over the majority of Central Committee and Parliamentary Party members but they cannot directly claim for party split. A party split is not possible unless 40 percent members from both the Central Committee and the Parliamentary Party are proved in front of the Election Commission.

As the political crisis continues amid Oli’s refusal to step down despite the Supreme Court passing a verdict against his December 20 decision to dissolve the House, both factions are in exercise to “oust” members who are not on their sides.

The Dahal-Nepal faction on Wednesday through its Central Committee “took action” against seven leaders from the Oli faction. The faction on December 22 had “ousted” Oli as a general member of the party.

The Dahal-Nepal faction said it has suspended Subas Nembang from the Standing Committee and directed him to resign as the deputy leader of the Parliamentary Party within three days. It also sacked Bishal Bhattarai, who was recently appointed the chief whip by the Oli faction; Shanta Chaudhary, the party’s whip; and Prabhu Sah, minister for urban development in the Oli Cabinet, as Central Committee members. It also ousted Oli’s press adviser Surya Thapa, Mahesh Basnet and Karna Bahadur Thapa from the Central Committee.

The move from the Dahal-Nepal faction comes a week after Oli removed Dev Gurung as the chief whip and appointed Bhattarai in his place. Gurung belongs to the Dahal-Nepal faction.

Shreekrishna Aniruddh Gautam, a political commentator and columnist for the Post’s sister paper Kantipur, says the country’s politics has reached today’s situation because in Nepal lawmakers often tend to take a reactive approach, thereby failing to anticipate various future scenarios.

According to Gautam, the 40 percent provision for the party split in the Political Party Act and depriving the prime minister of the authority to dissolve the House were a result of a reactive approach taken by the lawmakers.

“The constitution actually not only weakened the prime minister but also Parliament,” Gautam told the Post. “Nor could we achieve the goal of stability.”

There could be legal complications, which are more technical, but the provisions that were aimed at stopping frequent party splits, however, failed to stop the Nepal Communist Party from splitting.

Until a few months ago, the Nepal Communist Party was the ruling party, but now half of it is ruling while the other half is acting as though it is an “opposition”.

Rekha Sharma, who was a member of the State Affairs Committee that finalised the Political Party Act, agrees that the stern provisions were intentionally inserted after deliberations in view of the frequent party splits, a major cause of political instability.

“It was brought with good intentions and it by and large served its motive,” Sharma told the Post. “However, it is true that we hadn’t anticipated the present scenario.”

According to her, those in leadership positions of the parties failed to internalise the intent behind having such provisions and laws.

Today, the Nepal Communist Party is in such a state that it can neither remain one nor split because of the complex legal provisions.

The Dahal-Nepal faction claims to have at least two-thirds of the 441 Central Committee members. It also claims to have around 87-90 members of the Parliamentary Party with it. It, therefore, is staking claim to the Nepal Communist Party, its flag, emblem and the sun election symbol. The Election Commission, however, has refused to recognise its claims. The Oli faction cannot make a move for a party split because it lacks the numbers (40 percent of Central Committee members).

Back in April last year, Oli had introduced an ordinance to amend the provision so as to facilitate a party split and the registration of a new party. The ordinance aimed to change 40 percent of Central Committee and Parliamentary Party members to “40 percent of either Central Committee members or Parliamentary Party members.” However, Oli was forced to withdraw the ordinance after widespread criticism.

Analysts and experts on legal matters say the constitution and laws should be futuristic and must be able to foresee complexities that could arise in the future.

The constitutional provisions taking away the prime minister’s right to dissolve the House were also aimed at ensuring stability. The framers of the constitution themselves have admitted that they had held thorough discussions on how prime ministers in the past, under the 1990 constitution, were employing the inherent power vested in them to dissolve the House at the drop of a hat.

But while making it difficult for the prime minister to dissolve the House, the framers failed to envision a situation that arose after Oli’s dissolution move.

Experts say three different factors have led the country to the present situation—a lack of leadership culture, a lack of faith in the constitution and the law, and preference for the party’s Central Committee over the Parliamentary Party.

“While it is true that the constitution has weakened the prime minister by removing his prerogative to dissolve the House, it also gives him protection,” Bipin Adhikari, a former dean at Kathmandu University School of Law, told the Post. “As far as Oli’s move is concerned, it clearly shows that he did not have faith in the protective measures of the constitution he voted for.”

With the Supreme Court order on February 23, the House is set to commence its meeting on Sunday. But clouds of uncertainty are hovering above the country.

The Dahal-Nepal faction is baying for Oli’s blood, while Oli is adamant on his stance, and is challenging Dahal and Nepal to unseat him.

The Nepali Congress, which has 63 seats (two suspended), is sitting on the fence, weighing options so as to achieve political gains. The Janata Samajbadi Party has just 32 members in Parliament, hardly enough to change the national political landscape.

Experts say it’s not just the laws but the political leadership’s strong will and intent that guide the country’s politics. And if the laws meant for certain purposes fail to achieve the intended goal, they must be changed, according to them.

Bidur Prasad Phuyal, a professor of political science at Tribhuvan University, said if the Political Party Act introduced to ensure stability failed to yield results and rather blocked the democratic process, it needs a revision.

“It’s not possible to anticipate everything while making laws,” Phuyal told the Post. “If any law does not work then it needs to be revised.”

But a revision to any law or an amendment to the constitution must undergo a thorough process. Despite putting in place the laws and constitutional provisions with good intentions, Nepal’s politicians have once again raised the spectre of instability, which they once vowed to end.

Gautam, the political commentator, said the current developments show Nepali lawmakers were shortsighted in performing their legislative roles and should serve as a lesson during lawmaking processes in the future.

Adhikari, the law professor, however, accused the Election Commission of failing to perform its duty.

“The ongoing deadlock is certainly the result of a lack of political culture in Nepal’s political parties,” said Adhikari. “But the Election Commission too failed to take a decision promptly, thereby adding to the confusion.”

प्रतिनिधिसभा पुनर्स्थापना गर्ने सर्वोच्च अदालतको आदेशपछि मुलुक संसदीय अभ्यासमा फर्कन लागेको भए पनि नेपाल कम्युनिस्ट पार्टी भित्रको विभाजनसम्बन्धी अस्पष्टताले पुनर्स्थापित संसद्का कामकारबाही तत्कालै प्रभाव पार्ने विज्ञहरूले बताएका छन्।

प्रधानमन्त्री केपी शर्मा ओलीले गएको पौष ५ गते गरेको प्रतिनिधिसभा विघटनको सिफारिस सर्वोच्च अदालतको संवैधानिक इजलासले मङ्गलवार असंवैधानिक ठहर गरेको थियो।

अदालतले प्रधानमन्त्री, राष्ट्रपति र सभामुख सहितका नाममा १३ दिनभित्रै प्रतिनिधिसभाको बैठक बोलाउन परमादेश पनि जारी गरेको थियो।

अदालतको फैसला आएसँगै प्रतिनिधिसभा पुनर्स्थापनाको माग गरिरहेका नेकपाको प्रचण्ड-माधव नेपाल समूहसहित विभिन्न दलहरूले नैतिकताका आधारमा प्रधानमन्त्रीले राजीनामा दिनुपर्ने बताइरहेका छन्।

प्रधानमन्त्रीको समूहले आफ्नो भावी रणनीति तय गर्न बैठक गरिरहेको छ तर उनका सल्लाहकारले ओलीले राजीनामा नदिने बरु परिस्थितिको सामना गर्ने प्रतिक्रिया दिइरहेका छन्।

अबको प्रक्रिया कसरी अघि बढ्छ?

कानुनविद् तथा संसदीय अभ्यासका जानकारहरूका अनुसार अदालतको आदेशको कार्यान्वयन गर्दै अब प्रधानमन्त्रीको सिफारिसमा राष्ट्रपति विद्यादेवी भण्डारीले १३ दिनभित्र प्रतिनिधिसभाको अधिवेशन आह्वान गर्नुपर्छ।

प्रतिनिधिसभा विघटनको विपक्षमा बहस गरेका एक जना कानुनविद् अधिवक्ता ओमप्रकाश अर्याल भन्छन्, “अहिले प्रतिनिधिसभा पौष ५ गतेभन्दा अघिको अवस्थामा छ। अबको पहिलो बाटो भनेको प्रधानमन्त्रीले सिफारिस गरेर राष्ट्रपतिले बैठक बोलाउने भन्ने हो। हैन उहाँले अलमलै कायम राख्नुभयो भने संसद्‌को एकचौथाइ सदस्यहरूले राष्ट्रपतिलाई लेखेर संसद्‌को अधिवेशन बोलाउन समावेदन गर्न सक्छन्। त्यसपछि राष्ट्रपतिले अधिवेशन बोलाउनुपर्छ।”

“तर त्यसमा पनि राष्ट्रपतिबाट अवरोध भयो भने सभामुखले बैठक बोलाउनुपर्छ किनभने अहिले संवैधानिक इजलासले परमादेश दिएको राष्ट्रपतिको कार्यालय, प्रधानमन्त्री, प्रधानमन्त्री तथा मन्त्रिपरिषद्को कार्यालय र सभामुखलाई पनि हो। विक्रम संवत् २०५२ सालको भाद्र १२ गते सभामुखले पत्र दिएर राजाले अधिवेशन बोलाएको नजिर पनि छ।”

संवैधानिक कानुनका ज्ञाता विपिन अधिकारी समय नै किटेर संवैधानिक इजलासले परामादेश जारी गरेको उल्लेख गर्दै अदालतको आदेश अस्वीकार गर्न प्रधानमन्त्री र राष्ट्रपति दुवैलाई गाह्रो हुने ठान्छन्।

उनले बीबीसीसँग भने, “यो १३ दिनको समयमा प्रधानमन्त्रीले राष्ट्रपतिलाई दिन तोकेर संसद्‍को बैठक बोलाउन अनुरोध गर्नुपर्‍यो। पहिले नै दुईवटा अधिवेशनबीचको छ महिनाको अवधि पूरा भइसकेकाले अदालतले ढिलाइ होला भनेर जुन अग्रसरता लियो, त्यो राम्रो हो। अब बाँकी प्रक्रिया प्रधानमन्त्रीले राष्ट्रपतिलाई अनुरोध गरेर सम्पन्न गर्नुपर्छ।”

अदालतको निर्णयपछि संसद्‌को पहिलो बैठकमा के हुन्छ?

संसद् सचिवालयका पूर्वमहासचिव मनोहर भट्टराईका अनुसार पुनर्स्थापित प्रतिनिधिसभाको पहिलो बैठकमा अधिवेशन डाकिएको जानकारी गराइएको राष्ट्रपतिको पत्र सभामुखले वाचन गर्ने र दलीय आधारमा नेताहरूले आफ्नो धारणा राख्ने कार्यसूची बन्ने बताउँछन्।

उनी भन्छन्, “तेह्र दिनभित्र बैठक बस्नेगरी प्रक्रिया पूरा गर्न अदालतले आदेश दिएकाले राष्ट्रपतिले बोलाएर पहिलो बैठक त्यस बेलासम्म गरिसक्नुपर्ने हुन्छ। पहिलो बैठकमा कुनै उल्लेख्य अजेन्डा हुँदैन। यो मितिमा प्रधानमन्त्रीको सिफारिसमा राष्ट्रपतिले विघटन गरेको कुरा अदालतले पुनर्स्थापना गरेकाले आज हामी यहाँ जम्मा भएका छौँ भनेर सभामुखले सभा सुरु गर्नुहुन्छ। त्यो दिन सबै दलका नेताहरूले राजनीतिक धारणा पनि राख्नुहुन्छ।”

पहिलो बैठकपछि अहिले उठ्ने देखिएका प्रधानमन्त्री ओलीविरुद्ध प्रस्तुत हुन सक्ने अविश्वासको प्रस्तावसहितका सवालका विषयमा कसरी अघि बढ्ने भनेर सभामुखले शीर्ष नेताहरू र कार्यव्यवस्था समितिमा छलफल गरी संसद्‌को अर्को बैठकको मिति तोक्ने उनी बताउँछन्।

नेकपाको विभाजन स्पष्ट नहुँदा कस्तो प्रभाव पर्छ?

पूर्वमहासचिव भट्टराईका विचारमा नेपाल कम्युनि्स्ट पार्टीभित्र विभाजन देखिएको तर त्यो फुटले औपचारिकता नपाइसकेको संसदीय गतिविधि कसरी अघि बढ्छ भनेर अहिल्यै लख काट्न सकिने अवस्था छैन।

उनले भने, “सत्तापक्ष छुट्टिइसकेको पनि छैन, तर मतमतान्तर धेरै ठूलो छ। प्रधानमन्त्रीले आफूले गरेको निर्णय अदालतले उल्टाइदिएपछि नैतिकताको आधारमा राजीनामा गर्नुहुन्छ कि भनेर धेरैले अनुमान गरेका थिए। तर उहाँले राजीनामा नगर्ने र सदनलाई सामना गरेर जाने बताएपछि अब पार्टीभित्रको विभाजन कसरी अघि बढ्छ त्यस अनुसार संसद्‌को कार्यक्रम बन्छ।”

प्रधानमन्त्री ओलीले प्रतिनिधिसभा विघटन गरेको पौष ५ गतेकै दिन नेकपाका अर्का अध्यक्ष प्रचण्डलाई प्रधानमन्त्रीमा प्रस्ताव गर्दै उक्त दलकै सांसदहरूले प्रधानमन्त्रीविरुद्ध अविश्वासको प्रस्ताव संसद् सचिवालयमा दर्ता गराएका थिए।

भट्टराई उक्त अविश्वासको प्रस्ताव पुनर्स्थापित प्रतिनिधिसभामा प्रस्तुत गरिए त्यसमा बढीमा एक हप्ताभित्र निर्णय आइसक्ने बताउँछन्।

“यो १३ दिनभित्र नेकपाले विभाजन भएर वा मिलेर कसरी अघि बढ्ने निर्णय गर्छ त्यसमा धेरै कुरा निर्भर हुन्छ। अहिलेबाटै सबै दलहरूले व्यापक स्तरमा छलफल गर्नुपर्ने अवस्था छ। राजनीतिक मार्गचित्र कसरी अघि बढ्छ अहिले नै भन्न सकिने अवस्था छैन।”

तिनिधिसभा विघटनपछि दुईवटा खेमामा विभाजित नेकपालाई पुन: एकताबद्ध बनाउनुपर्ने धारणा दुवै समूहका कैयौँ नेताहरूले अदालतको आदेश आएलगत्तै राख्न थालेका छन्।

तर बीबीसीसँग कुरा गर्दै नेकपाका अध्यक्ष प्रचण्डले प्रधानमन्त्री ओलीसँग पार्टी एकता गर्ने वा मिलेर सरकार बनाउने सम्भावना आफूले नदेखेको बताएका थिए।

कस्तो समीकरण बन्न सक्छ?

संविधानविद् विपिन अधिकारी तत्कालै नेकपाका दुई पक्षबीच सहमति हुने सम्भावना आफूले नदेखेको बताउँछन्।

संसद् पुनर्स्थापित भएसँगै सत्ता समीकरणमा आफ्नो पक्षमा पार्न नेकपाका दुवै समूहहरू सक्रिय भएर लाग्ने उनले टिप्पणी गरे।

त्यसका लागि प्रधानमन्त्री स्वयंले संसद्‌मा विश्वासको मत लिने वा आफूलाई चुनौती दिइरहेको खेमाबाट प्रस्तुत हुने अविश्वासको प्रस्तावको सामना गर्ने दुईवटा विकल्प छन्।

अधिकारी भन्छन्, “अविश्वासको प्रस्तावमा सबैभन्दा कठोर प्रकिया भनेको वैकल्पिक प्रधानमन्त्रीको नाम उल्लेख गर्नुपर्छ। अहिलेको नेकपाको छुट्टिएको समूहसँग त्यो क्षमता छ कि छैन भन्ने टड्कारो प्रश्न छ।”

उनले थपे, “जस्तो प्रधानमन्त्रीका रूपमा प्रचण्डले आफूलाई प्रस्तुत गर्नुहोला तर उहाँलाई प्रधानमन्त्री बन्न सहयोग गर्दा नेपाली कांग्रेसलाई कुनै फाइदा छैन। अर्कोतर्फ यत्रो आन्दोलन गरेको समूह नेपाली कांग्रेसको नेतृत्वमा किन सरकारमा जान्छ भन्ने प्रश्न छ।”

“त्यसमाथि अहिलेको नेपाली कांग्रेसको नेतृत्वको सम्बन्ध प्रधानमन्त्री ओलीसँग ‘विशेष’ रहेको भन्ने विवरणहरू आएका छन्। बरु अहिलेको प्रधानमन्त्रीले नै नेपाली काँग्रेसको समर्थन लिएर संयुक्त सरकार चलाउने भन्नेतर्फ पनि जान सक्छ।”

अधिकारीको बुझाइमा प्रधानमन्त्री ओलीले नेपाली कांग्रेसका सभापति शेरबहादुर देउवालाई प्रधानमन्त्रीको रूपमा समर्थन पनि गर्न सक्छन्। “दुइटैले अल्पमतको सरकार बनाउने र अर्कोले बाहिर बसेर समर्थन गर्ने भन्ने विकल्पमा पनि जान सक्छ।”

नेकपाका अध्यक्षले भावी सरकारको नेतृत्वमा आफ्नो दाबी नरहने प्रतिनिधिसभा पुनर्स्थापना हुनुअघि बताउने गरेका थिए।

संसद्‌को अङ्कगणित कस्तो छ?

प्रतिनिधिसभाबाट नयाँ प्रधानमन्त्री चुनिन कुल सदस्य सङ्ख्या २७५ को बहुमत अर्थात् १३८ सांसदको समर्थन जुटाउनुपर्ने हुनुपर्छ।

प्रतिनिधिसभामा नेकपाका दुवै खेमाको १७३, नेपाली कांग्रेसको ६३, जनता दल समाजवादी पार्टीको ३४ र साना दल एवं स्वतन्त्रका तर्फबाट चार सांसद छन्।

अहिले नेकपातर्फ एक सांसदको पद रिक्त छ भने नेपाली कांग्रेसको र जनता दल समाजवादीका दुई-दुई सांसद निलम्बित रहेको संसद सचिवालयका अधिकारीहरू बताउँछन्।

नेकपाका एक-दुई सांसदले आफू कुनै पनि पक्षमा नलाग्ने धारणा सार्वजनिक गरेका थिए।

नेकपाको विभाजनसँगै प्रचण्ड-माधव नेपालको पक्षमा लगभग ९० जना र प्रधानमन्त्री ओलीको पक्षमा लगभग ८० जना सांसद भएको विवरणहरू आएका छन्।

यो परिस्थितिमा नेकपाको दुवै पक्षलाई नयाँ सरकार गठनका निम्ति प्रमुख विपक्षी नेपाली कांग्रेसको समर्थन अनिवार्य रहने देखिन्छ।

Nepal Communist Party (NCP) leaders close to Prime Minister KP Sharma Oli have indicated that he is unlikely to resign as PM immediately, leading people to speculate what will happen when the next session of the House of Representatives is called before March 8. THT talked to legal eagles to try and get a clear picture.

Senior Advocate Raman Kumar Shrestha said the change of government could happen in two ways – either by passing a notrust motion against Prime Minister Oli or by removing him as the parliamentary party leader.

As per the constitutional provision, 25 per cent of HoR members can move a no-trust motion against the PM, but they should also propose the name of the next prime minister they want to elect. The constitution, however, allows lawmakers to move a notrust motion against the PM only once a year after he has completed two years in the office.

Naming the next prime minister could be tricky for the Dahal-Nepal faction because without the support of the Nepali Congress, the Dahal-Nepal faction cannot get the no-trust motion passed in the House. In the 275-member HoR, NCP has 174 members, NC has 63 and Janata Samajbadi Party-Nepal has 34.

He said the NC might not support the Dahal-Nepal faction if its leader was not proposed as the next PM.

“But for the Dahal-Nepal faction supporting another party’s leader as the next PM will be difficult because their cadres, who fought hard against the prime minister’s move dissolving the HoR, will question their own leaders’ decision,” he said.

Senior Advocate Bipin Adhikari said the president, as guardian of the constitution, could ask the prime minister to seek a vote of confidence citing the possibility of his losing the confidence of the House due to the recent controversy or the PM could himself seek a vote of confidence.

India is closely watching the developments in neighbouring Nepal where the Supreme Court’s decision to reinstate the parliament that was dissolved at the recommendation of Prime Minister KP Sharma Oli has brought on a fresh political crisis.

The first order of work for the reinstated parliament will be the formation of a new government, as the Nepal Communist Party with 173 members in the 275-member Lower House has split and there is no immediate likelihood of the two factions coming together.

According to sources, it is unlikely that Oli, who is from the Nepal Communist Party, will resign and he is ready to face a no-confidence motion.

At this point, the Nepali Congress party is being seen as kingmaker as it has been in talks with Oli for a coalition government after the parliament was dissolved.

However, how the process of formation of a new government moves ahead will depend on the steps that Oli takes, according to political observers in Kathmandu.

India, which had hosted Nepal’s foreign minister a few months ago in a sign of continuity in ties despite the parliament’s dissolution, is observing the developments closely, ET has learnt.

A no-confidence motion needs signatures of at least 25% of the members of the House of Representatives, or the parliament. For a no-confidence motion to pass and to form a government, the number is 138.

Oli–now the caretaker prime minister–has 80 lawmakers on his side, and the support of the Nepali Congress, which has 63 seats, can help him become prime minister again. But this may not be easy, as the Prachanda faction of Nepal Communist Party is wooing the Nepali Congress.

“Oli became a caretaker prime minister the day he dissolved the House and there is no need for a caretaker prime minister to resign,” Bipin Adhikari, former dean at the Kathmandu University School of Law, told The Kathmandu Post, a leading daily. “The president can call for the process for the formation of the new government once the session of the Lower House commences.”

Also, if the PK Dahal faction of the Nepal Communist Party (90 members), the Nepali Congress (63) and the Janata Samajbadi Party (32) come together, they will make up 67% of the Lower House.

But for that to happen, the Nepal Communist Party has to split legally first. Although the party has seen a split, legally it is still one, as the Election Commission continues to recognise Oli and Dahal as its chairs. The crisis is far from over, sources said from Kathmandu.

Oli, meanwhile, is in consultations with his National Security Council following the rise in threat perceptions in the backdrop of the Supreme Court’s decision.

The Nepal crisis is reminiscent of the situation after the 1994 general election which yielded a hung parliament, as well as those following the first and second Constituent Assembly elections of 2008 and 2013 when no party had a majority. Coalition governments and frequent changes of government were the order of the day.

संविधानविद् डा. विपिन अधिकारीले प्रतिनिधि सभा पुनर्स्थापना गर्नेगरी सर्वोच्च अदालतले गरेको निर्णयलाई संविधानसम्मत भनेका छन्।

सर्वोच्चले संविधानलाई टेकेर नै फैसला सुनाएको प्रतिक्रिया अधिकारीले लोकान्तरलाई दिए ।

संविधानविद् अधिकारीको भनाइ जस्ताको तस्तै :

प्रतिनिधि सभा विघटन बदर गर्ने गरी सर्वोच्च अदालतले गरेको फैसला संविधानसम्मत छ। जुन किसिमले मानिसहरूले अनि कानूनविद्हरूले अपेक्षा गरेका थिए, त्यसैअनुसार सर्वोच्चले फैसला गरेको हो।

संविधानलाई टेकेर सर्वोच्चले फैसला गरेको छ। फैसला पूर्णरूपमा सही छ। यसमा अन्य टिप्पणी गर्नुपर्ने आवश्यकता नै छैन।

फैसला गर्नुपर्ने, सुनुवाई गर्नुपर्ने जस्ता काम सर्वोच्चको नित्य कर्म हो।

संवैधानिक अदालत पनि भएका कारण उसले निरन्तर गरिराख्नुपर्ने कर्मअनुसार नै प्रतिनिधि सभा विघटनसम्बन्धी मुद्दामा फैसला सुनाएको हो ।

यसलाई ऐतिहासिक फैसला नै भनेर भन्नु पर्ने केही आधार देख्दिनँ।

प्रधानमन्त्री केपी शर्मा ओली सfमान्यतया काम चलाउ अर्थात केयर टेकर सरकारको रूपमा हुनुपर्ने हो। तर, उहाँले हालसम्म राजीनामा दिनुभएको छैन।

संसद् पुनर्स्थापना भएपछि प्रधानमन्त्री ओलीले राजीनामा गर्नुहुन्छ वा हुन्न त्यो उहाँमा निर्भर हो। तर, उहाँ अहिले राजीनामा दिएको प्रधानमन्त्री जस्तै काम चलाउ हैसियतमा नै हुनु हुन्छ।

राष्ट्रपति विद्यादेवी भण्डारीले यो फैसलालाई कसरी लिनुहुन्छ वा उहाँको दृष्टिकोण कस्तो हुन्छ भन्ने कुरामा निर्भर हुन्छ।

यदि उहाँले संसद् पुनर्स्थापनाको सन्दर्भमा प्रधानमन्त्रीको काम चलाउ हैसियतलाई स्वीकार गर्नु भएन भने पुनर्स्थापित संसद्ले प्रधानमन्त्रीविरूद्ध अविश्वासको प्रस्ताव ल्याउनेछन् ।

यदि राष्ट्रपतिले पनि सकारात्मक रूपमा लिनुभयो भने उहाँले नयाँ सरकार निर्माणको प्रक्रिया अगाडि बढाउनुहुनेछ।

काठमाडौं । प्रतिनिधिसभा पुनःस्थापनासँगै अबको प्रक्रिया के हुन्छ ? नेकपाको विभाजनले कानूनी मान्यता पाइनसकेको अवस्थामा प्रचण्ड-माधव पक्षले प्रधानमन्त्रीविरुद्ध पहिलेकै अविश्वास प्रस्तावलाई संसदमा लैजान्छ वा केपी ओलीलाई दलको नेताबाट हटाउने वैधानिक प्रक्रियामा जान्छ ?

यी दुई प्रक्रियाबारे कुनमा जाने भन्नेमा अझै प्रचण्ड-माधव पक्ष प्रष्ट भइसकेको छैन । प्रचण्ड र माधव नेपाल बुधबार बिहानै चितवनबाट काठमाडौं फर्किंदैछन् । सोही दिन दलको बैठक बोलाउने सम्भावना रहेको निकट एक नेताले बताए ।

कानूनी रुपमा नेकपा अहिले पनि प्रतिनिधिसभामा बहुमतमा छ । संसदीय दलको नेता वैधानिक रुपमा ओली नै छन्, यद्यपि विघटनपछि अर्को पक्षले प्रचण्डलाई दलको नेता चयन गरेको छ । संविधानविद् विपिन अधिकारी प्रतिनिधिसभा पुनःस्थापनापछि दलको नेता चयन हुनुपर्ने बताउँछन् ।

संसदीय दलको नेता ओली नै फेरि पनि चुनिए र नेकपा विभाजनले कानूनी मान्यता पाएन भने उनी फेरि प्रधानमन्त्रीको दावेदार हुनसक्ने तर अहिलेकै सरकार भने निरन्तर नहुने उनले बताए । तर त्यो प्रक्रियामा जानेतर्फ प्रचण्ड-माधव पक्ष छैन ।

निर्वाचन आयोगले नेकपा विभाजनलाई कानूनी मान्यता नदिएकाले केही जटिलताहरु फेरि सिर्जना हुने संवैधानिक कानूनका विज्ञहरु बताउँछन् । सीधै संसदमै अविश्वास प्रस्ताव लैजाने प्रक्रियामै जाने सम्भावना रहेको विघटनविरुद्ध बहस गरेका संविधानविद् टीकाराम भट्टराईले बताए ।

उनले नेपाल प्रेससँग भने-अविश्वास प्रस्ताव पुस ५ गते नै संसदमा दर्ता भएको छ । त्यसैलाई सक्रिय बनाएर संसदबाटै टुंगो लगाउने एउटा प्रक्रिया छ । दलको नेताबाट केपी ओलीलाई हटाउने हो भने प्रमुख सचेतकमार्फत अविश्वास प्रस्ताव दलमा लैजानुपर्ने हुन्छ ।

प्रचण्ड–माधव पक्षका सांसद तथा कानूनविद् कृष्णभक्त पोखरेलले अब प्रचण्डकै अध्यक्षतामा संसदीय दलको बैठक बस्ने बताए । उनले राजनीतिक रुपमा ओलीलाई आफूहरुले दलको नेताबाट हटाइसके पनि वैधानिकताको प्रश्न उठेमा त्यसबारेमा सोचिने नेपाल प्रेससँग बताए ।

पोखरेलले भने– ओलीलाई संसदीय दलको नेताबाट पहिले नै हटाइसकेका छौं । त्यस विषयमा अझ वैधानिकताको प्रश्न छ भने त्यसमा सोच्ने कुरा हुन्छ । अविश्वास प्रस्ताव स्वतः सक्रिय हुन्छ र प्रचण्डले अरु पार्टीहरुसँग छलफल गरेर नयाँ सरकार गठनको प्रक्रिया शुरु हुन्छ ।

पोखरेलले अब अर्को अविश्वास प्रस्ताव दर्ता गर्न नपर्ने बताए । प्रस्ताव दर्ता भएर दर्ता नम्बर समेत लिइसकेकाले अब प्रधानमन्त्रीले संसदमै अविश्वासको प्रस्तावको सामना गर्नुपर्ने वा त्यसअघि नै राजीनामा दिनुपर्ने पोखरेलले बताए ।

नेकपाको विभाजन कानूनी रुपमा नभइसकेकाले संविधानको धारा ७६ को उपधारा २ अनुसार नयाँ सरकार गठन हुने कि ३ अनुसार भन्ने अन्याेल भने कायमै छ । उपधारा २ अनुसार बहुमतप्राप्त संसदीय दलको नेताका रुपमा ओली प्रधानमन्त्री भएका थिए ।

आयोगले नेकपाको बारेमा निर्णय नगरेसम्म दल एकीकृत नै रहने र दुइटा गुटका रुपमा उनीहरु रहने अवस्था छ । यसबीचमा प्रधानमन्त्री पक्षको कदम प्रष्ट भइसकेको छैन । तर औपचारिक रुपमा दल विभाजन वा दलको नेता चयन प्रक्रियामा नजाँदासम्म अन्योल भने कायमै रहने देखिन्छ ।

दल विभाजनले कानूनी मान्यता नपाउन्जेल वा एउटा पक्षले नयाँ दल दर्ता नगरेसम्म नेकपा बहमुत प्राप्त दलकै रुपमा रहने संविधानविद्हरु बताउँछन् । प्रचण्ड-माधव पक्षले संसदीय दलमा बहुमत सिद्ध गरेर ओलीलाई वैधानिक प्रक्रियाबाट हटाउने दिशामा जाने सम्भावनाबारे नेताहरु नै प्रष्ट भइसकेका छैनन् ।

प्रतिनिधिसभामा १७३ र राष्ट्रियसभामा ५० गरी नेकपाका कुल २२३ सांसद छन् । विधान अनुसार नेकपा संघीय संसदीय दलको नेता चयनमा दुवै सदनका सांसदहरुको संख्या गनिन्छ ।

अविश्वास प्रस्तावमा हस्ताक्षर गरेका ९२ प्रतिनिधिसभा सदस्यमध्ये ५ जनाले हस्ताक्षर फिर्ता लिएका छन् । उनीहरु अब फेरि प्रचण्ड-माधव पक्षमै लाग्छन् वा ओलीसँगै रहन्छन् ? पुनःस्थापनासँगै ओली पक्षका अरु केही सांसद समेत आफ्नो पक्षमा आउने प्रचण्ड-माधव पक्षको भनाइ छ ।

After nearly two months of hearing on the writ petitions against the December 20 dissolution of the House of Representatives, lawyers finished putting forth their views on Friday. The last of the five members of the amicus curiae, Gita Pathak Sangraula, rounded up the arguments.

With the conclusion of the hearing, Chief Justice Cholendra Shumsher Rana, who is heading the Constitutional Bench hearing the writs, asked the plaintiffs and lawyers representing them and the defendants’ lawyers to present their legal briefs to the court by Monday.

“The process for the final verdict will commence on Tuesday which could take a few days,” Chief Justice Rana said on conclusion of the hearing.

According to officials at the Supreme Court, the five-member Constitutional Bench will study the legal briefs which will be followed by a consultation among the justices on the final verdict.

“It will take at least a few days for the study and consultations,” Kishor Poudel, a communication expert at the Supreme Court, told the Post.

More than one hundred advocates had put forth their arguments before the bench from the two sides although the number of those who wanted to take part in the hearing was over 200.

The hearing on the writs began on December 23, three days after President Bidya Devi Bhandari dissolved the House of Representatives on the recommendation of Prime Minister KP Sharma Oli. A single bench of Rana through the first hearing had decided to send 12 of the 13 writ petitions against the dissolution to the Constitutional Bench claiming the matter required serious constitutional interpretation.

The Constitutional Bench formed on December 25, after listening to the opening remarks of a handful of lawyers, directed Bhandari and Oli to present written justifications for their move to dissolve the House. The bench also requested the Nepal Bar Association and the Supreme Court Bar to recommend three and two senior advocates respectively for the amicus curiae.

The hearing began on January 15.

After the lawyers representing the plaintiffs and defendants presented their arguments for and against the House dissolution, the senior advocates in the amicus curiae started their arguments on Monday, concluding them on Friday.

Commenting on the court proceedings, constitutional experts said there was clearly a lack of coordination among the advocates from both sides.

“The arguments from both sides were weak,” said Bipin Adhikari, former dean at the Kathmandu University School of Law. “There was room to contest their arguments.”

Advocates representing the plaintiffs repeated the same argument that the prime minister’s move was unconstitutional without presenting strong arguments based on the constitution explaining why, according to Adhikari.

“They failed to clearly define the reasons to prove their claim that the dissolution was unconstitutional,” he said.

More than 60 advocates on behalf of the plaintiffs presented their arguments for 15 days claiming that Oli’s move to dissolve the House was a breach of the Constitution of Nepal. They said the House of Representatives is dissolved as per Article 76 (7) of the statute when there is a hung parliament and there is no possibility to form a government.

The move to dissolve the House was defended by the Office of the Attorney General and around three dozen private lawyers. Attorney General Agni Kharel on February 1 started the defence. He, however, failed to provide concrete constitutional grounds for doing so and instead continued to offer political reasons for the act, in line with the written clarification Prime Minister Oli had furnished to the court.

“The defendants’ presentation was even weaker as there were no articles from the constitution they could cite to prove that Oli’s move was constitutional,” said Adhikari.

Kharel maintained that House dissolution is a prime minister’s prerogative but stopped short of providing the constitutional provisions that vested Oli with the power. A majority of the lawyers who stood in defence of the House dissolution repeated the argument saying it was a political decision and inherent authority of the prime minister in a parliamentary democracy.

“Rather than standing on constitutional provisions, the lawyers tried to justify the dissolution saying that it is the prime minister’s prerogative in the parliamentary system to dissolve the lower house. But the prime minister’s prerogative to dissolve the House, which is a feature of a Westminster system, was deliberately withdrawn in our constitution,” said Adhikari, commenting on the defendants’ defence. “The claim from defenders that Oli dissolved the House using the prerogative doesn’t hold water.”

After the two sides finished their arguments it was the turn of the amicus curiae.

Of the five friends of court, Satish Krishna Kharel, Purna Man Shakya and Pathak categorically said there are no constitutional grounds for Oli to dissolve the House while Bijay Kant Mainali defended the move arguing that the prime minister, in a parliamentary democracy, has an inherent authority for the dissolution.

Badri Bahadur Karki, on the other hand, wavered arguing that several ambiguities in the Constitution of Nepal regarding the House dissolution which needs to be interpreted by the court rather than saying clearly whether a prime minister can dissolve the House or not. He, however, said as Oli’s move was guided by a mala fide intention, and therefore, it was unconstitutional.

According to Adhikari, the members of the amicus curiae could clearly present their arguments explaining the constitutional provisions and legislative intent.

However, there was a repetition from the lawyers who pleaded on the side of the plaintiffs and the defendants, Adhikari said.

“They only killed the crucial time of the court. The bench shouldn’t have allowed that,” he said.

Before the Constitutional Bench began the hearing on January 15, Justice Sapana Pradhan Malla on January 13 replaced Hari Krishna Karki after he decided to recuse himself from the hearing on the grounds that he was once Oli’s counsel in the capacity of the attorney general. Justices Anil Kumar Sinha, Bishowambhar Prasad Shrestha and Tej Bahadur KC are other members of the bench.

Raju Prasad Chapagain, chairperson of the Constitutional Lawyers’ Forum, said the quality of a hearing also depends on the bench.

“Along with the lawyers, the bench is also responsible for the low quality of the hearing,” he told the Post. “Despite the issue having such huge implications, the overall hearing was superficial.”

The resolution of the most important political crisis in the country since the promulgation of the new constitution in 2015 will now be discussed by the five Supreme Court justices before the Constitutional Bench gives a verdict.

“It is difficult to specify the exact date for the verdict,” said Poudel, the communication expert.