Category: Quotes

Nepal is in a state of confrontation.

Amid concerns over a political showdown between two factions of the Nepal Communist Party, key state agencies that define the separation of powers have been brought against each other. The genesis lies in Prime Minister KP Sharma Oli’s moves of introducing an ordinance on December 15 and dissolving the House of Representatives five days later.

In an unprecedented move, House Speaker Agni Sapkota on February 5 filed a writ petition against the chiefs of executive and the judiciary as well as the Office of the President.

As Speaker, Sapkota heads the legislature.

Sapkota has challenged the recommendations made by a meeting of the Constitutional Council. The meeting was held after Oli introduced an ordinance to revise some provisions regarding the summoning of the Council meeting and taking decisions.

The Speaker has argued that he was not informed (48 hours prior) for the meeting.

President Bidya Devi Bhandari on February 3 appointed the officials recommended by the December 15 Council meeting.

The appointments were made even as the Oli government’s move of introducing the ordinance was sub judice—not even a single hearing had been conducted.

Experts say the way things have unfolded over the last two months has risked the democratic process in the country. According to them, while Oli’s ordinance and House dissolution were wrong, the Speaker moving the court against the executive and judiciary are also unjustified.

The Speaker has made the prime minister and the chief justice defendants in the case, for the former heads the Council and the latter is a member. The Office of the President has been made defendant because it made the appointments to the constitutional bodies.

Bipin Adhikari, former dean of Kathmandu University School of Law, said that the extraordinary jurisdiction of the Supreme Court to file writ petitions or public interest litigations is reserved for common citizens, not those who hold an office of authority.

“Sapkota has filed the writ petition in the capacity of the Speaker, which is fundamentally wrong,” Adhikari told the Post. “The fight between the state agencies is not a good sign for democracy.”

While filing his case as a public interest litigation, Sapkota has presented his personal case as well, claiming that the appointment issue is a concern of the entire country and the people. After a first hearing on February 7, a single bench of Justice Prakash Dhungana has already issued a show cause notice to the defendants.

In his petition, Sapkota has claimed that he was deprived of the right to know about the [Constitutional Council] meeting and that the appointments need to be corrected for the larger public good.

As per the Supreme Court regulation, public interest litigations can be filed with regard to issues of larger public interest rather than individuals.

The Speaker’s petition is also flawed because he has ignored the fact that the Parliamentary Hearing Committee is a joint committee of the House of Representatives and the National Assembly, according to experts.

Sapkota in his writ has claimed that the appointments were made despite his decision to return the Council recommendations to the Secretariat of the Constitutional Council.

Earlier on January 31, Sapkota had returned the recommendations forwarded by the Council saying that there was no possibility of holding the hearing of the appointees as the House of Representatives did not exist. He, however, had not consulted with the chair of the National Assembly, who is also a member of the Council.

Analysts say Sapkota acted as if the hearing committee was under his prerogative. The 15-strong hearing committee had 12 members from the lower house and three members from the upper house.

National Assembly Chairman Ganesh Timilsina on February 1 had reacted to Sapkota’s move of sending back the Council recommendations claiming that he did not have the authority to make the decision unilaterally.

Adhikari, the former dean, said the Speaker is the presiding officer of the House of Representatives who holds no authority to decide on matters of the joint committee.

“However, he acted like an executive authority of Parliament as a whole,” said Adhikari.

The appointments were made on the basis of Rule 26 (2) of the Joint Parliamentary Meeting Regulation as 45 days had elapsed since the Council sent the recommendations to the Parliament Secretariat.

Rule 26 (2) of the Joint Parliamentary Meeting Regulation of the federal parliament says there would 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 letter from the Council.

Laxman Lal Karna, who headed the hearing committee, however, had told the Post that the 45-day period was not applicable in this case, as it applies only after the hearing starts. Since the House was dissolved the same day the recommendations were sent to the Parliament Secretariat, the hearing committee had already died, according to Karna.

But whether the recommendations and appointments were legal was to be tested by the court, as the December 15 Council meeting decision had already been challenged, Sapkota’s move of filing his own writ has muddled an already confusing issue.

Experts say that in a democracy, the power of the three state agencies is complementary and when they indulge in a tussle, democracy suffers.

According to them, as the head of one key organ of the state, Sapkota needed to play the role of a coordinator between the state agencies rather than challenging them.

Madhav Basnet, a senior advocate who specialises on constitutional law, said among the three state organs two—the executive and the legislature—are political institutions and the third—judiciary—is apolitical.

The Speaker, however, has dragged an apolitical institution into a political fight by filing the writ.

“The legislature and the judiciary have a similar position constitutionally, but now by filing the writ, the Speaker has surrendered before the Court,” Basnet told the Post. “What if the court rules against him? Won’t it raise a moral question for him?”

The shadow of confrontation that is now engulfing the state agencies, however, emanates from the conflict in the Nepal Communist Party, particularly between Oli and Dahal.

After a weeks-long tug-of-war between Oli and Dahal over the Speaker’s post, the latter had managed to extract a win in the third week of January, 2020.

The fight over the Speaker’s post, however, was just the tip of the iceberg, as conflict had been growing in the Nepal Communist Party for some months.

Sapkota succeeded Krishna Bahadur Mahara, yet another former Maoist leader close to Dahal, who resigned following rape allegations against him. Oli had at least on a couple of occasions expressed his displeasure at Mahara for non-cooperation.

Ever since Sapkota assumed office, the Oli camp was suspicious.

Sapkota, however, presided over the House meetings barely for six months, as suspecting any untoward move against him, Oli on July 2 had prorogued the House.

Just as the Dahal-Nepal faction was up in arms over House dissolution, Sapkota too had made his position clear on Oli’s move.

There were allegations that Sapkota, despite being elected to the non-partisan post of Speaker, was acting at Dahal’s instructions, just as Timilsina, who also as the National Assembly chair, faces accusations of working at the behest of Oli.

Now chiefs of the two houses whose primary duty is to oversee the law-making process are also at odds.

Analysts say the country and the people expected political stability, strengthening of the constitution and empowering of state agencies after the 2017 elections, but Oli set in motion a chain of events, creating an environment of hostility among key state organs.

“Sapkota’s move of filing the writ petitions can have a profound impact on the democratic system that we were trying to strengthen,” said Basnet. “He should have let the court deal with the cases that were filed earlier, but by filing the case, he has made the legislature party to the conflict.”

 Amid a growing concern over the delay in the hearing of the petitions against the dissolution of House Representatives, Chief Justice Cholendra Shumsher Rana on Sunday said it was necessary to conclude the hearing process within one week by Friday.

The Rana-led Constitutional Bench, which is hearing the case, allotted a maximum of 30 minutes to each lawyer. However, despite the court’s effort the hearing is going beyond Friday. The officials at the Supreme Court say it will take at least one more week from Thursday to conclude the hearing process.

Kishor Poudel, a communication expert at the Supreme Court, said the lawyers defending the dissolution will conclude their arguments by Thursday afternoon and the lawyers representing Speaker Agni Sapkota will start their arguments from the same day. Sapkota had submitted a written justification in the court claiming the Prime Minister KP Sharma Oli doesn’t have the authority to dissolve the House. Five lawyers will be presenting the arguments from Sapkota’s side.

As the Cabinet on Monday decided to give a public holiday on Friday for Sonam Lhosar, Sapkota’s lawyers will conclude their argument earliest by Sunday. “Then will come the turn of the 13 petitioners to put their arguments countering the defendants,” Poudel told the Post. “That will be followed by the statements from the amicus curiae.” The five amicus will put their arguments on President Bidya Devi Bhandari’s move to dissolve the Lower House based on the recommendation from Prime Minister KP Sharma Oli.

The amicus will put their arguments without taking any sides. Poudel said the hearing will be concluded earliest by February 17.

The petitioners also have a similar view.

Dinesh Tripathi, one of the petitioners, said he expects the hearing to conclude in a week and the court will give a verdict in next one week. “As this is a serious issue, the court will take at least one week after the conclusion of the hearing to announce its verdict,” he told the Post. “We can expect the decision in the next two weeks.”

As many as 13 petitions have been filed against the dissolution of the House of Representatives, claiming the constitution doesn’t allow the prime minister to dissolve the House. Conducting the preliminary hearing on December 23, the single bench of Rana decided to send them to the Constitutional Bench.

A five-member Constitutional Bench led by Rana was constituted on December 25, which after opening remarks from the petitioners, issued a show cause notice to the Office of the President and the government demanding a written justification for their move to dissolve the House by January 3.

It has sought clarification from them asking why the court should not issue an order as demanded by the petitioners who have sought revocation of the President’s approval to dissolve the House based on the government’s recommendation. The final hearing began on January 6, after the written justification from the Office of the President and the government. However, the hearing was more focused on whether the petitions should be taken to the extended full bench from the Constitutional Bench.

There was also the issue raised by the petitioners as Justice Hari Krishna Karki, who served as Attorney General in Oli’s government in 2015, was part of the Constitutional Bench. Karki on January 6 recused himself from the bench following the controversy.

The final hearing formally began on January 15 after the Constitutional Bench said the judgment of petitions falls under its jurisdiction and it was not necessary to send them to the extended bench.

It took 15 days for the lawyers from the plaintiff to put their arguments. The defendant lawyers led by Attorney General Agni Kharel started their argument on February 1 which will conclude after 11 days on Thursday.

While the Constitutional Bench wanted to shorten the hearing, constitutional experts too have been saying the delay will only invite the complexities. Talking to the Post last week Bipin Adhikari, former dean at Kathmandu University School of Law, had said as there was unnecessary repetition in the arguments the court should ask to cut them short. “The hearing process was lingering unnecessarily,” he told the Post.

It has been exactly a month since the Supreme Court started hearing on writ petitions against Prime Minister KP Sharma Oli’s December 20 decision to dissolve the House of Representatives.

After lawyers pleading on behalf of the petitioners challenging House dissolution, those defending the government started their arguments on February 1.

It, however, is still not clear when the court will pass its verdict.

Oli has declared snap polls for April 30 and May 10, and he has repeatedly said there is no way polls could be postponed, thereby also ignoring the fact that the House could be restored by the court.

On Friday, while addressing his supporters, Oli declared that elections are a must for stability and encouraged all to make a pitch for elections.

Decks for elections will, however, be cleared only if the court endorses Oli’s House dissolution move.

Analysts say since the Constitutional Bench is still hearing the case, it will be premature to comment on the basis of “what if”, but they admit that concerns are growing about possible political scenarios.

If the court reinstates the House, politics will return to Parliament and within the constitutional framework. If not, the country will have no option but to go to the polls.

But the bigger worry is what if elections fail to take place on the declared dates.

At least half a dozen analysts, including legal and constitutional experts and former justices, the Post talked to said they have complete faith in the country’s judiciary and that they strongly believe that competent justices will not let the country plunge into a deep crisis.

“We believe that the competent court will take a decision as per the constitution on the basis of established legal principles,” Girish Chandra Lal, a former Supreme Court justice, told the Post.

Similarly, Sher Bahadur KC, a former chair of Nepal Bar Association, said he believed the bench would rescue the country from falling into an abyss.

“I firmly believe there will be a House soon,” KC told the Post. “I cannot even imagine the court will endorse the House dissolution move.”

But some observers are worried about the political uncertainties and constitutional vacuum if the House is not restored and elections don’t take place.

“It’s already becoming difficult for the Election Commission to hold the polls in April-May as the players, the political parties, still do not seem to be ready. The poll body cannot take a risk of pushing the election game through when the players are not ready,” said Bhojraj Pokharel, the former chief election commissioner who is credited with pulling off the mammoth 2008 Constituent Assembly elections. “It’s quite complicated. Even if the commission takes a decision in favour of one faction [of the Nepal Communist Party], what’s the certainty that the other faction will accept that easily.”

According to him, elections are held to manage conflict—not to create the ground for another conflict.

Experts on constitutional matters have for long been saying that Oli had assaulted the constitution by dissolving the House, as there are no provisions that allowed him, as a majority prime minister, to do so.

Those who were directly involved in the charter drafting process maintain that the 2015 constitution deliberately incorporated provisions in such a way that a prime minister won’t be able to dissolve the Parliament at the drop of a hat.

Subas Nembang, who chaired the Constituent Assembly for two terms, has not spoken anything lately in public, but in one of the video clips from 2019, he can be heard clearly saying that the prime minister cannot dissolve the House.

Prakash Osti, a former Supreme Court justice and former commissioner of the National Human Rights Commission, said that irrespective of what decision the Supreme Court makes, the 2015 constitution is already dead.

“We have come to such a pretty pass that no one can predict which way the country will go,” Osti told the Post. “Anything can happen.”

As per the government declared dates, the first phase of voting should take place on the 82nd day from today, provided that the court clears the way.

The other faction of the Nepal Communist Party, led by Pushpa Kamal Dahal and Madhav Kumar Nepal, has warned of “an apocalypse” if the country is pushed towards elections.

The Dahal-Nepal faction, which has already made an appeal to the commission to halt poll preparations, has made House restoration its bottom line.

If the House is not restored, the Dahal-Nepal faction is likely to ratchet up its protests and demonstrations, which also could make it difficult for the elections to take place.

According to analysts, court endorsement of the House dissolution will take the country completely out of the constitutional framework and then if elections fail to happen, Nepal will face a political and constitutional vacuum no one can imagine.

“The moment the government fails to hold the elections, if the court clears the way by endorsing the House dissolution, the prime minister’s legitimacy will end,” said Hari Roka, a political economist. “And there is no mechanism to hand over power, as our constitution does not envision such a situation.”

According to Roka, such a situation will lead to sharp divisions among the parties and the country will run the risk of losing the hard-earned achievements made through various movements including the one in 2006.

Oli’s House dissolution move has had such a domino effect that all key state agencies—which are supposed to maintain the checks and balances—have been dragged into controversy.

In an unprecedented incident, the House Speaker, who heads the legislative body, on Friday filed a case at the Supreme Court against the heads of the executive, the judiciary and the state.

Analysts say if key actors fail to protect the constitution, the hard-earned gains like secularism and federal democratic republic could quickly unravel.

“Since the court is still hearing the case, we can say we have not yet fallen into a constitutional crisis despite political turmoil,” said Bipin Adhikari, former dean of Kathmandu University School of Law. “But if the government fails to hold elections, there will be a vacuum.”

According to Adhikari, Nepal’s constitution does not imagine the absence of the House of Representatives, hence all the fundamental features including the operations of Constitutional Council, law-making and emergency have been provisioned accordingly.

“The constitution has envisioned that the House of Representatives will be put in place immediately through polls once its five-year term ends,” said Adhikari.

But Oli has cut short Parliament’s life with no certainty if the country will vote to elect a new one.

“Our constitution does not have any provision to replace even the caretaker government as it imagines the presence of the House of Representatives all the time,” said Adhikari.

At Sunday’s hearing, when Shyam Kumar Bhattarai, joint attorney general, was pleading on behalf of the government, making an argument for Oli’s call for a fresh mandate, Chief Justice Cholendra Shumsher Rana sought to know if there is an environment for the same.

Except Oli and those in his orbit, no one is ready to believe that elections can take place on declared dates. Even some insiders from the Oli camp concede in private that elections could be pushed further.

Speaking at a press meet organised by Press Organisation Nepal in Kalikot on January 25, Home Minister Ram Bahadur Thapa had said that the polls could be postponed if the verdict of the court is delayed.

Experts say with no provision to replace a caretaker government, failure to hold elections will create more political conflict.

Chandra Kanta Gyawali, a senior advocate who specialises on constitutional law, said a government eyeing the polls first ensures that there is the budget and necessary logistics. But at this time, there is still confusion over whether parties will participate in the polls, according to him.

“If elections fail to happen, the only way to reinstate the House could be street movement,” said Gyawali. “Oli’s government will become illegitimate once it fails to hold the polls. An all-party government could be a possibility to hold the polls to elect the House so as to bring the country back on constitutional track.”

The poll dates have been announced also without considering other constitutional obligations of the state.

The second phase of voting has been scheduled for May 10, but as per the constitutional provision, the government must present the budget on May 29.

There is confusion as to what happens to the budget in both cases—if elections happen or don’t happen.

Experts say a constitution should help govern the country, not cause it to stumble, but when the assault on the country’s top law starts from the top, uncertainty rears is ugly head.

“Damage has been done to the constitution but it can still be repaired and let’s have faith in our judicial system,” said Adhikari, the law professor. “The amicus curiae is there to analyse and advise the court on the possible scenarios in the event the House dissolution is endorsed. The Supreme Court is well aware of the constitutional crisis the country could face.”

In what appears to be an unprecedented incident in Nepal’s democratic practices, the head of the legislature has approached the Supreme Court to file a case against the heads of all key state agencies—the executive, the judiciary and the presidency.

House Speaker Agni Sapkota on Friday filed a writ petition at the Supreme Court against Wednesday’s appointments of office bearers to various constitutional bodies inviting a direct confrontation with the two other state agencies. The Speaker moved the court two days after President Bidya Devi appointed 32 office-bearers to 11 constitutional bodies.

The 32 office bearers were recommended by the Constitutional Council on December 15.

“A writ challenging the appointments has been registered,” Kishor Poudel, a communication expert at the Supreme Court, told the Post. “Speaker Sapkota himself was present to file the petition.”

The hearing on the petition will commence on Sunday.

Wednesday’s move has invited widespread criticism, as many say the appointments were unconstitutional because the Constitutional Council, headed by Prime Minister KP Sharma Oli, had made those recommendations after amending the Constitutional Council Act through an ordinance and the nominees had not gone through a parliamentary hearing, a process made mandatory by the constitution.

Along with the 32 appointees, the Office of the President, Prime Minister Oli as the chair of the Constitutional Council, Chief Justice Cholendra Shumsher Rana and National Assembly Chairman Ganesh Timilsina as the council members, the secretary at the council secretariat, and Chief Secretary Shankar Das Bairagi have been made defendants.

The constitution stipulates a six-member Constitutional Council headed by prime minister, with House Speaker, deputy Speaker and the leader of the main opposition among the members.

There was no deputy Speaker elected, and the Oli government had amended the provisions in such a way that the presence of the Speaker and leader of the opposition was not necessary.

The Speaker had already expressed his dissatisfaction at the December 15 recommendations saying that he was not informed about the meeting as per the mandated rule—that members must be informed about the meeting 48 hours beforehand.

Earlier on Sunday, the Speaker had sent back documents related to the Constitutional Council’s recommendations to its secretariat.

Experts say Sapkota’s moves are questionable but the situation the country is facing is invited by Oli who has been making unconstitutional moves one after another.

Over the years, since assuming office in February 2018, Oli has taken a slew of decisions aimed at centralising power. And in doing so, he has not spared any institution. His actions have brought disgrace upon the Office of the President, with many saying that the head of executive had reduced the head of state to the clerical status, where the high office’s job has been just to put a stamp on the government’s decisions.

But Oli’s House dissolution decision created more mess, as with a stroke of the pen, he dragged other key institutions—the judiciary and the legislature—into controversy, giving rise to dirty partisan politics.

“The way the situation is unfolding in Nepal is an ugly example of partisan politics,” Krishna Pokhrel, a professor of political science at Tribhuvan University, told the Post. “Oli started it by dissolving Parliament and others seem to be in a competition to further ruin the system.”

By now it has become apparent which key person stands where.

National Assembly chair Timilsina has made his position clear that he is with Oli, just as Speaker Sapkota has—that he will toe Pushpa Kamal Dahal’s line.

Sapkota was picked for the Speaker’s post by Dahal after a long-drawn tug-of-war in January last year over the appointment.

Rana as chief justice is wearing multiple hats—he leads the Supreme Court and is a member of the Constitutional Council. The council had made recommendations in his presence on December 15. Rana was the one who administered the oath to the appointees on Wednesday.

Constitutional experts say it is unfortunate for the country to see an open confrontation among the key state agencies which are supposed to ensure the checks and balances.

Bipin Adhikari, former dean at the Kathmandu University School of Law, said the extraordinary jurisdiction of the judiciary basically is for the ordinary people, not for the ones who lead the state agencies.

According to him, if state agencies start challenging each other in the court of law, the balance of power gets distrubed.

The principle of separation of powers divides the tasks of the state into three branches: the legislature, the executive and the judiciary.

The tasks are assigned to different institutions in such a way that each of them can put a check on others. As a result, no one institution can become so powerful in a democracy as to destroy this system.

It was therefore Oli’s December 15 ordinance to amend the Constitutional Council Act that attracted widespread criticism, because he had disturbed the power balance envisioned by the constitution.

According to Adhikari, the ongoing friction between the different state agencies is a clumsy example of partisan politics, which does not bode well for democracy.

“The Dahal-Nepal faction is using the Speaker as a tool to put pressure on the government,” said Adhikari. “Sapkota’s role as Speaker has been dubious. At times, he absented himself from the Constitutional Council meetings, and other times, he delayed some bills in Parliament.”

Oli has argued that he was forced to introduce the ordinance to amend the Constitutional Council Act as members, including Speaker, were refusing to attend the meetings, while constitutional positions remained vacant.

The amendment to the Act meant the meeting could convene if the majority of members—three—are present and take a decision through the majority.

Earlier provisions also called for the presence of majority members for the meeting to convene, but without the Speaker and the leader of the opposition, it was almost impossible for holding the meetings. Earlier provisions said the decision must be taken through consensus and if that did not happen, the next meeting could decide on the basis of majority.

But by changing the provisions, Oli made it easier for the council to take decisions, as a meeting could take place without the Speaker and leader of the main opposition.

As Dahal had already upped his ante against Oli, Sapkota was reluctant to attend the meetings, thereby creating a lack of quorum in the council.

According to Adhikari, while the decision to issue the ordinance to revise the Constitutional Council Act was against the spirit of the constitution, the Speaker’s refusal to attend the meetings [before the ordinance] was also wrong.

“It was incumbent upon Sapkota as a key member of the Constitutional Council to participate in the meetings and conduct the required vetting of the nominees,” said Adhikari. “The way politics of the country is moving ahead shows there are many more events on the cards that could harm democracy.”

After registering the petition at the Supreme Court on Friday, Sapkota at a press conference said that he had decided to challenge the appointments to “safeguard the constitution”.

“The act of administering oaths to the chairs and members of constitutional commissions without the mandatory parliamentary hearing is a blatant attack on the constitution,” said Sapkota. “At this adverse situation, I urge intellectuals, mediapersons, civil society and members of the public to unite against such moves.”

Balaram KC, a former justice at the Supreme Court, said Oli’s highhandedness, anarchism and arbitrariness have thrown the country into a big mess.

“It would have been better for this situation not to come, but today’s petition by Sapkota should also not be taken otherwise, as he has used his right to challenge the government,” KC told the Post. “This happens in other countries including the United States of America as well.”

Experts say Oli, through a series of actions, disturbed the balance of power and hence the country is facing a situation where major state agencies are in a legal battle. And this confrontation between the state agencies is not good for democracy and the constitution, according to them.

“Now the country is facing a situation where the key state agencies seem to be in a confrontational mode,” said Adhikari, the law professor. “This is going to cost high for our hard-earned democracy and constitution.”

Lost in the turmoil over Prime Minister KP Sharma Oli’s dissolution of the House of Representatives on December 20 has been the prime minister’s more insidious challenge to the country’s democratic institutions in the form of the Constitutional Council ordinance.

The Constitutional Council makes recommendations for the numerous check-and-balance bodies mandated by the constitution itself. These include the Commission for the Investigation of Abuse of Authority (CIAA), the corruption-control body mandated to look into graft involving government officials; the National Human Rights Commission, mandated to investigate cases of human rights abuse and recommend action; and the Election Commission, the body that conducts elections. All of these important state organs perform vital roles in keeping the country’s democracy vibrant and functioning, and as they answer directly to Parliament and not the head of government, they are able to exercise influence on the functioning of the executive.

It was for precisely this reason that Oli had been attempting to take control of the Constitutional Council, which includes the prime minister, chief justice, the House speaker, deputy House speaker, chair of the National Assembly, and leader of the opposition as members. But Oli had been stymied time and again by a number of the council’s members, especially Nepali Congress President Sher Bahadur Deuba, since the council requires that at least four members, including the leader of the opposition, be present to sit for a meeting. Or it once did.

On December 15, days before his House dissolution, Oli dispatched an ordinance regarding the Constitutional Council to President Bidya Devi Bhandari, who swiftly approved it. The ordinance amended the Constitutional Council Act to allow the council to sit even when the leader of the opposition is not present and to take decisions on the basis of a simple majority.

That same day, the council, chaired by Oli, recommended 38 names for 11 constitutional commissions, including former Home Secretary Prem Kumar Rai for chief of the CIAA. However, the Parliamentary Hearing Committee was unable to conduct a hearing as required by law because five days later, it was dissolved. The names were then forwarded to President Bhandari, and on Wednesday, Chief Justice Cholendra Shumsher Rana administered the oath of office to 32 individuals, including Rai.

According to Bipin Adhikari, a constitutional scholar and former dean of the Kathmandu University School of Law, the appointments were made citing a controversial provision in the regulations of the federal Parliament that allows for appointments to be made “without obstruction” after 45 days of the Parliament receiving the recommendations. Fifty days have passed since the recommendations were dispatched to the Parliament-Secretariat.

“Some may cite the legal provisions but these appointments have now taken us down a series of unconstitutional and illegal actions,” said Adhikari.

According to legal experts, the provision in the parliamentary regulations only applies in case the Parliament is unable to complete its hearing within 45 days, not when the Parliament itself is not in session. Oli made certain that his recommendations would be fulfilled by dissolving the House.

“The provision only applies if the parliamentary committee isn’t working diligently. But when the Parliamentary Hearing Committee itself isn’t in place, nominees cannot be appointed automatically,” said advocate Dinesh Tripathi, a lawyer who had registered a writ petition at the Supreme Court immediately after the appointments were made. The court rejected the petition.

Oli’s dissolution of the House has also been challenged by numerous petitions at the Supreme Court but a decision has yet to be made. Many believe that the court is not likely to reverse Oli’s decision, given the actions of Chief Justice Rana. Not only did Rana administer the oath of office to recommended individuals on Wednesday but he, along with Oli and National Assembly chair Ganesh Prasad Timilsena, was part of the council that made the recommendations in the first place.

With his appointments in place, Oli is likely to use them to his advantage. Immediately after his recommendation, CIAA chief Rai had promised to open up old cases, particularly cases involving corruption in the Maoist combatant cantonments. Oli’s arch-rival Dahal has been accused of embezzling millions in funds meant for Maoist combatants in cantonments immediately after the end of the civil conflict in 2006. A corruption case, registered at the CIAA, has been pending for six years. Many believe that Oli will attempt to use Rai and the CIAA as a stick with which to threaten Dahal.

How important these appointments are to Oli is reflected in the manner in which he passed the ordinance. He’d made an attempt to get the ordinance passed before. In April last year, two ordinances, one concerning the Political Party Act and the other concerning the Constitutional Council, were swiftly passed and then just as swiftly recalled after they generated great controversy. At that time too, Oli tried to circumvent a parliamentary hearing as the House was in recess. On December 15, he tried again, and this time, there was no hue and cry.

As the Constitutional Council recommends members to positions that are supposed to be above partisan politics, it was envisioned with consensus in mind, which is why the presence and assent of the leader of the opposition was once mandatory. But Oli’s amendment ordinance has made it easier for him to weaponise powerful constitutional bodies against his political enemies.

Dahal knows of Oli’s plans, which is why directed Agni Sapkota, the House Speaker, to send back the recommendations on February 1. Sapkota, a close ally of Dahal since the conflict years, duly complied but the appointments were made regardless.

But it is not just the CIAA that has the potential for misuse. Even appointments to the Election Commission, when elections have been scheduled for the spring in April-May, are suspect. As is the appointment of Tap Bahadur Magar as chair of the National Human Rights Commission when Nepal’s image on the international stage has been taking a beating for its failure to ensure transitional justice and numerous cases of security agencies using undue force on protestors and civilians.

“In the past, the Parliament had sent back names of election chief commissioner Ayodhee Prasad Yadav and Judicial Council nominee Ram Prasad Sitaula as the Parliamentary Hearing Committee wasn’t in place,” said advocate Tripathi, citing past precedent.

Under Article 114 of the constitution, any ordinance passed by the President must be tabled and passed by both Houses of Parliament within six months. Polls to elect a new House of Representatives have been scheduled for April-May but it is uncertain if they will be held. Even if elections are held, it could be difficult for Oli to gain a similar majority in the new Parliament and get his ordinances approved. It is unclear what will happen to the appointments if Parliament rejects the ordinances.

“More constitutional complications will unfold in the days to come,” said Adhikari, the constitutional law professor. “That’s why it’s necessary to immediately restore the House.”

 After advocates pleading on behalf of the petitioners who have challenged Prime Minister KP Sharma Oli’s House dissolution move were done, starting Monday lawyers defending the government started their arguments before the Constitution Bench.

Attorney General Agni Kharel, as the chief counsel to the government, is leading the team of defending lawyers.

Kharel, however, floundered on both Monday and Tuesday, as he tried to justify Oli’s House dissolution decision. He failed to provide concrete constitutional grounds for doing so and instead continued to offer political reasons for the act.

In his arguments on Tuesday, the attorney general explained that House dissolution is a prime minister’s prerogative. He, however, stopped short of providing the constitutional provisions that vested Oli with power to dissolve the House.

Kharel also cited the same articles Oli has cited–76 (1), 76 (7) and 85–for dissolving the House and argued that Oli as a majority prime minister “can dissolve the House.”

When asked by justices, Kharel did not say which article of the constitution authorised Oli to dissolve the House.

He reiterated that the prime minister used his inherent power.

“Our constitution has adopted a parliamentary system as its key feature,” argued Kharel. “As Article 74 of the constitution says we have adopted parliamentary democracy, we must understand the prime minister has an authority to dissolve the House of Representatives.”

Article 74 of the Constitution of Nepal says: “The form of government of Nepal shall be multi-party, competitive, federal, democratic, republican and parliamentary based on pluralism.”

Those opposing Oli’s move had argued that articles 76 (1) and 76 (7) cited by him are related to the formation of the government, which do not allow a majority prime minister to dissolve the House.

Kharel was one of the key members of the Constituent Assembly which drafted the constitution with the said provisions, making it difficult for a prime minister to dissolve Parliament given Nepal’s past experiences of political instability.

Both Subas Nembang, who oversaw the constitution drafting as the chair of the Constituent Assembly, and Kharel were in the past fierce proponents of writing strong provisions that would bar the prime minister from dissolving the House at the drop of a hat.

Ever since dissolving the House, Oli has been arguing that the dissolution was a political move which doesn’t warrant a judicial review.

But Kharel now is in a bind. In the capacity of attorney general, history has landed upon him the duty of defending a prime minister who faces charges of dissolving the House.

Kharel hence has been providing the same reason that Oli has offered—that the cause of the House dissolution was political.

During the hearing on Monday and Tuesday, Kharel was faced with a barrage of questions from justices, who sought the constitutional ground for dissolving the House.

Kharel, however, could not provide concrete answers.

Bipin Adhikari, former dean at Kathmandu University School of Law, who has been following the ongoing hearing closely, said the attorney general must present enabling provisions in the constitution for the House dissolution.

“But he has failed to do so,” Adhikari told the Post. “It is not that Kharel doesn’t know. It is because there is no constitutional provision that he can present before the court to establish that Oli’s move is valid.”

Those who have been supporting Oli’s move often cite past House dissolutions by different prime ministers.

On Tuesday, Kharel too tried to present Girija Prasad Koirala’s example to justify Oil’s move.

Koirala in 1994 had dissolved the lower house despite leading a majority government. The Supreme Court had then upheld Koirala’s decision.

But as soon as Kharel cited Koirala’s move, Justice Anil Kumar Sinha intervened, asking how the 1994 incident was relevant now as the country has already adopted a new constitution which has entirely different provisions.

Koirala had employed Article 53 (4) of the Constitution of the Kingdom of Nepal 1990 to dissolve the House in 1994. That constitution had a clear provision that “the King shall dissolve the House of Representatives on the recommendation of the prime minister”.

Three other House dissolution attempts were made under the 1990 constitution by different prime ministers after Koirala in 1994.

Manmohan Adhikari and Surya Bahadur Thapa, who led minority governments, had also recommended House dissolutions, in 1995 and 1998, respectively, but the Supreme Court had overturned their decisions.

In 2002, Sher Bahadur Deuba too dissolved the House. It was upheld by the court.

Experts say the new constitution does envision House dissolution, but its drafters deliberately made it a complicated process so as to ensure stability. Article 76 (7) of the 2015 constitution envisions dissolution only when there is a hung parliament with no possibility to form a government, according to them.

“It is natural for Kharel to put political cause as he doesn’t have any constitutional grounds to back his arguments,” said Adhikari. “The Supreme Court takes the decision based on constitutional grounds, not on political grounds.”

In a long-winded letter, which came into the public domain some days ago, recommending the President that the House be dissolved, Oli has also said that obstacles created in governance by a section of leaders in his party had necessitated the House dissolution. He has also argued that a two-thirds majority government was required for stability hence he wanted to seek a fresh mandate of the people.

During the hearing, Kharel was intervened by justices on different occasions when he made political arguments instead of sticking to logical and constitutional reasonings.

In an attempt to justify Oli’s move, Kharel said that Nepal has adopted the Westminster system of governance.

He even claimed that the June 2015 16-point agreement between the Nepali Congress, then CPN-UML, then CPN (Maoist Centre) and Madhes-based parties was about the forms of governance, which talked about parliamentary democracy.

Justice Sapana Pradhan Malla intervened, asking how the agreement between the parties can even be taken as legislative intent.

Kharel was at a loss for words.

Experts say Kharel’s premise that Nepal has adopted a parliamentary democracy to justify House dissolution as the prime minister’s prerogative is outright wrong. According to them, Nepal does not follow the Westminster model in its entirety, as it has adopted various practices from different countries.

“Our system is a defective child of the Westminster system. Though its genesis is Westminster, it has gone through several modifications,” Shree Krishna Aniruddha Gautam, a political analyst who writes for the Post’s sister paper Kantipur, told the Post.

“When the constitution clearly provides conditions for House dissolution, he cannot say it’s the prime minister’s prerogative.”

Kharel would be right, in principle, if Nepal had a constitution clearly mentioning that the prime minister possesses inherent power to dissolve the House. Since Nepal is a country with a written constitution, the executive has to follow it to the letter and spirit, according to experts.

Ram Krishna Timilsena, former registrar at the Supreme Court and executive director at National Law College, said that Nepal has a modified parliamentary system.

Timilsena said Nepal has borrowed some provisions from German and French models as well, even though the system it follows appears to be modelled on India and the United Kingdom. While India has a written constitution, the United Kingdom does not.

“We have adopted a completely different model through modifications in the parliamentary system,” Timilsena told the Post. “Now whatever arguments Kharel is presenting, he is doing it as his duty to defend the government.”

Senior advocate Sushil Pant, who argued on behalf of the government, also defended the House dissolution move saying that in the Westminster system, the prime minister has two inherent powers: to sack the ministers and dissolve the House.

“The court shouldn’t just focus on the letters of the constitution,” said Pant. “It should also look at practices and specialties of the governance system.”

Adhkari, the former dean at Kathmandu University School of Law, said that in his observation, the defending lawyers were standing on a very weak premise while making a case for the House dissolution.

“It seems other defendants won’t have any new arguments to present,” said Adhikari. “As we saw repetition when lawyers argued against the House dissolution, it seems we will have the same.”

According to Adhikari, the bench must intervene when the same arguments are repeated to ensure an early verdict.

An early verdict on the matter is expected to remove political uncertainties the country faces. If the court overturns Oli’s House dissolution move, Nepal’s politics will once again return to Parliament; if not, the country has to go for the polls. As per the government schedule, the first phase of voting takes place on April 30, and it’s just 87 days away.

“The longer the court takes to reach a verdict,” said Adhikari, “the more complications there could be.”

Kathmandu – On December 5, 2020, around 10,000 motorcyclists of the Bir Gorkhali movement, mostly wearing t-shirts with the imprint of the last king and queen, defied lockdown and stormed into the empty streets of Chitwan. The group chanted the slogan: “Raja Aau, Desh Bachau” (Come King, save the nation).

The police couldn’t intervene, and the group also amassed support from other political parties, royalist parties, and groups.

“Our group is apolitical, and we aim to restore the monarchy and commit to rescinding the unfortunate achievements of the 2006 Nepalese revolution,” Bhandari said.

The apolitical pressure group formed three years ago, which has around 18,000 members on Facebook, was led by Saurav Bhandari, a former Maoist child rebel and ex-member of right-wing Rashtriya Prajatantra Party (RPP).

Bhandari had spearheaded the demonstrations from October 2020 in different major cities of Nepal. The group’s plan was clear – to call for the restoration of the monarchy and scrapping federalism.

Bhandari’s involvement in the group wasn’t accidental.

From Maoist to Monarchist

In 2003, 94 kilometres east from the capital, Saurav Bhandari returned home from a musical performance when the Nepal Army arrested their group for having Maoist links – the Communist Party of Nepal that was dissolved in 2018. He was let go for being a minor.

Born in a family steeped in Maoism, Bhandari was forced to support the Maoists and was spoon-fed the idea that the monarchy was evil.

His understanding changed as he moved to the capital and immersed himself in extensive studies. Bhandari was convinced that the last king, Gyanendra Shah, wouldn’t have given up his throne so quickly if he had the ambition and drive to rule.

Three years ago, a 28-year-old Saurav Bhandari formed a pressure group named ‘Bir Gorkhali’ with the dream that the monarchy would be restored in Nepal one day.

The valour of the Gorkhas influenced the name ‘Bir Gorkhali,’ which loosely translates to ‘strong Gorkhali.’ It soon became a movement for Nepali youths as the group held demonstrations in Nepal’s various cities, and the participation numbers skyrocketed in thousands.

The Nepalese monarchy was abolished in Nepal on May 28, 2008, by the first Constituent Assembly.

Amid the pandemic, the Nepali Communist Party’s (NCP) failure to handle the issue had also prompted right-wing groups and pro-monarchy Nepalis to support demonstrations and demand the country be reinstated as a Hindu state. The youth, in particular, have become disillusioned with democracy and political parties.

Nepal’s ruling party has been unpopular as of late as it’s embroiled in inter-party fighting, corruption, and a failure to control the pandemic.

The solution to instability is monarchy?

Similarly, Nepal’s right-wing political party, Rastriya Prajatantra Party (RPP), royalists groups, and pro-monarchy Nepalis have held demonstrations in various Nepali cities, calling for the restoration of the monarchy and a Hindu state since last year.

Rajendra Lingden, a pro-monarchy RPP lawmaker, said that the restoration of the monarchy in Nepal is inevitable as the general public is frustrated with the politicians who’ve failed to uplift the spirit of democracy.

“The solution to Nepal’s political instability is monarchy restoration because we have already seen that a party that enjoyed a two-thirds majority couldn’t even last because of a power-sharing tussle. This is the failure of the 2015 constitution. A new agreement is needed, whether it comes from referendum or mass movement,” said Lingden.

RPP held pro-monarchy demonstrations in Hetauda and Jhapa on December 4 (major cities in southern Nepal) and Kathamndu on December 5.

Despite abolishing the monarchy, a section of Nepal’s population still supports the monarchy’s restoration, and royalist groups are upping the ante.

On December 2, Nepal’s Home Ministry sent a directive to 77 districts of 7 provinces to suppress pro-monarchy demonstrations and use force if needed. However, police forces were more lenient.

Sporadic pro-monarchy protests were a minor event during the previous twelve years. This year has seen an increase in Nepalis supporting the monarch. Royal supporters rallied in the capital on January 11 to celebrate the 299th birthday of Nepal’s founder, King Prithivi Narayan Shah. A clash ensued between demonstrators and the police. Among them was a high-profile celebrity.

Manisha Koirala, a Bollywood actress lending weight to the movement, said that unity among all Nepalis was imperative when the nation is facing another crisis. Although not expressing her political views directly, Koirala has become actively involved in supporting the royals and the monarchy.

Koirala expressed dismay after police intervention on January 11 and the royal demonstrators’ arrest and questioned if the government belonged to Nepalis.

“I’m not in a position to express any political views. I only want Nepal to stand tall, and for that, every element needs to be strengthened. All the pillars must work in coherence with each other giving strength to our nation,” she said.

Can a democratic monarchy exist?

Some analysts, however, are more skeptical about the monarchy’s restoration and what it would mean for the country.

Dr Surya Raj Acharya, an independent political analyst in Nepal, said that those who’re trumpeting the monarchy’s restoration expect it to solve corruption and other political wrongdoings.

“This is not possible by a ceremonial monarchy, and an executive monarchy is a tall order in the present context,” Surya says.

“Hoping the restoration of the monarchy is a solution to the supposedly failed institution of the presidency is not a logical step at all. There is no guarantee that the monarchy itself and people working for the monarchy would be immune from the anomalies that are currently seen in our politicians.”

Professor S D Muni, an expert in Nepalese affairs, said he doesn’t think the monarchy restoration movement will succeed as a constitutional amendment is needed and for that elections need to happen. On top of that, the 2015 constitution risks being annulled if the monarchy is restored.

“Monarchy in Nepal did not have a gracious history, except King Prithivi Narayan Shah who must be credited for founding Nepal, but his successors completely lost control and only king Mahendra succeeded but over democracy. Many Nepalis from remote and Terai areas joined the Maoist rebellion because they saw that under monarchial rule, no major developments occurred.”

On India supporting the monarchy restoration movement, S D Muni said that in November 2005 Prime Minister Manmohan Singh of India told King Gyanendra to restore democracy. India would support the monarchy against the Maoists. So there was no question of India’s intelligence wing uprooting the monarchy in Nepal.

However, Muni did acknowledge that there might be funding and support for some sections of the BJP towards the monarchy restoration movement.

“But those who might be funding the movement do not understand the Nepali system. Even in India, the BJP is struggling with RSS and Maoists in India. And India will always continue to support democracy in Nepal,” he said.

But, constitutional experts like Bipin Adhikari believe Nepal’s federal system can coexist with a constitutional monarchy but stresses a constitutional amendment.

“Restoration of the monarchy is a political issue. If there is support for it, it is possible to amend the constitution and create a provision. However, it isn’t easy to do it right away. The ongoing movement for the restoration of the monarchy is not enough. It is not broad-based, and the major political parties have not been prepared to contest elections for the House of Representatives on this premise.”

“A referendum might be allowed. But even if accepted by the referendum, by a majority vote, the Constitution’s amendment is still a requirement. This means a two-thirds majority in the Parliament must support the government proposal,” he said.

If there has been any direct act of defiance by Prime Minister KP Sharma Oli against his ally-turned-foe Pushpa Kamal Dahal, it was on Saturday when he addressed a mass meeting in Chitwan, Dahal’s electoral constituency.

Oli also inaugurated the local city hall of Bharatpur Metropolitan City and the ring road there.

Conspicuous by her absence was Bharatpur mayor Renu Dahal, daughter of Pushpa Kamal and chair of a faction of the Nepal Communist Party.

Oli decided to go ahead with the inauguration despite the mayor’s opposition because it was too good an opportunity to be missed for his election hustings, and that it was in father Dahal’s constituency seems to have been an added attraction.

According to a leader belonging to the faction led by Dahal and Madhav Kumar Nepal, since the Oli government has turned into the caretaker one as elections have already been announced, the prime minister does not have the moral authority to inaugurate development projects.

“Since day one after the Oli government became the caretaker one, we have been urging Oli not to take decisions that have long-term ramifications and we have been opposing his move,” said a Standing Committee member of the Dahal-Nepal faction of the communist party.

On January 25, Oli inaugurated a bridge over the Rapti river in Rapti Valley, the capital of Lumbini Province. Later Oli and Shanker Pokharel, chief minister of Lumbini promised other half a dozen projects in and around Dang district. The foundation of the bridge that Oli inaugurated had been laid by Dahal in 2017.

Pokharel on Saturday laid the foundation for a road project in Rolpa after 25 percent of the construction work had been completed and over 14 percent of it paid for.

On Monday, the prime minister is scheduled to inaugurate the country’s largest electricity transmission substation in Dhalkebar, Dhanusha.

Not only is Oli on an inauguration spree, he has also been awarding major government contracts.

On Friday evening, a meeting of Investment Board Nepal chaired by Prime Minister Oli awarded the tender to develop the 679-megawatt Lower Arun Hydropower Project to India’s Satluj Jal Vidyut Nigam under the build, own, operate and transfer modality.

Whether a caretaker government should award such a big project to anyone is a question that observers have raised.

“Awarding such a big project by a caretaker government may invite problems in the future as we have a very bad history of [governments] not owning projects awarded by predecessors,” said Bipin Adhikari, an expert on constitutional matters, said. “Budhi Gandaki is a good example.”

The Pushpa Kamal Dahal government in May 2017 had awarded a contract to the Chinese firm Gezhouba Group under the engineering, procurement, construction, and financing modality without competitive bidding.

The decision was overturned by the Sher Bahadur Deuba-led government in November 2017, saying there were some procedural flaws while awarding the contract. Since then the fate of the much-hyped project with an installed capacity of producing 1,200 megawatt power is in limbo and it remains uncertain who will build it.

“If an issue over any project is raised in future, then someone has to be accountable,” said Adhikari. “Such big projects that have been initiated abruptly may face risks in the future. When the status of the government is being questioned, the present government should stay away from taking such decisions.”

Such activities of the government could also influence elections, others say.

“These are attempts to influence the elections,” a government secretary said, on condition of anonymity.

It would not be for the sake of the project that it is undertaken, he added.

“Such political ego and competition will hamper development projects and finally they may not be complete on time because none of the sides cooperates with each other in such a divided situation,” the secretary said.

Of the different legal challenges that Oli has been facing since he recommended the dissolution of the House of Representatives on December 20, that his is a caretaker government which cannot take big decisions is one.

On December 25, Oli reshuffled his Cabinet and inducted several ministers as those belonging to the Dahal-Nepal faction had resigned on December 22. Subsequently, a petition was registered in the Supreme Court saying since his had become a caretaker government Oli did not have the authority to appoint ministers.

If Oli’s is a caretaker government and does not have the moral authority to make big decisions is one argument, that his actions are against the election code of conduct is another.

“It is up to the media and the Election Commission to monitor such activities,” said Raghuji Pant, a standing committee member of Dahal-Nepal faction. “We have also drawn the attention of the commission to such matters.”

The Election Commission, however, has not implemented the election code of conduct.

“We will hold a meeting with all political parties and will enforce the election code of conduct,” said Rajkumar Shrestha, spokesperson for the Election Commission.

Generally, election code of conduct comes into effect once the election dates are announced, observers say.

“But in our case, we do not have a definite law about election code of conduct,” said Gopal Siwakoti, who monitors the election process in Nepal. “In practice, when the election date is declared, the process of election begins. But in our case the Election Commission begins implementing the code of conduct only after the formal election process or timetable begins.”

The elections will happen only if the Supreme Court upholds the dissolution of the House. But Oli continues to reiterate that elections will be held on the announced dates of April 30 and May 10.

Oli has not been missing any opportunity to declare that the House will not be restored, a claim that has attracted the attention of the court which has summoned him to be present in person by February 4 to face a contempt case for influencing the court.

For its part, the Election Commission is in a state of confusion and it is not speaking up because it is under the shadow of the Oli government, say leaders who belong to the Dahal-Nepal faction.

“Oli’s intention to visit Dahal’s home district and to inaugurate the city hall and ring road shows how desperate and fearful he is,” said Beduram Bhusal, a Standing Committee member of the Dahal-Nepal faction. “His attempts are to divert public attention from the main issue. But his tactics to win the elections by blaming us or others, by inaugurating projects or by doing any other political stunt will not save him.”

If there has been any direct act of defiance by Prime Minister KP Sharma Oli against his ally-turned-foe Pushpa Kamal Dahal, it was on Saturday when he addressed a mass meeting in Chitwan, Dahal’s electoral constituency.

Oli also inaugurated the local city hall of Bharatpur Metropolitan City and the ring road there.

Conspicuous by her absence was Bharatpur mayor Renu Dahal, daughter of Pushpa Kamal and chair of a faction of the Nepal Communist Party.

Oli decided to go ahead with the inauguration despite the mayor’s opposition because it was too good an opportunity to be missed for his election hustings, and that it was in father Dahal’s constituency seems to have been an added attraction.

According to a leader belonging to the faction led by Dahal and Madhav Kumar Nepal, since the Oli government has turned into the caretaker one as elections have already been announced, the prime minister does not have the moral authority to inaugurate development projects.

“Since day one after the Oli government became the caretaker one, we have been urging Oli not to take decisions that have long-term ramifications and we have been opposing his move,” said a Standing Committee member of the Dahal-Nepal faction of the communist party.

On January 25, Oli inaugurated a bridge over the Rapti river in Rapti Valley, the capital of Lumbini Province. Later Oli and Shanker Pokharel, chief minister of Lumbini promised other half a dozen projects in and around Dang district. The foundation of the bridge that Oli inaugurated had been laid by Dahal in 2017.

Pokharel on Saturday laid the foundation for a road project in Rolpa after 25 percent of the construction work had been completed and over 14 percent of it paid for.

On Monday, the prime minister is scheduled to inaugurate the country’s largest electricity transmission substation in Dhalkebar, Dhanusha.

Not only is Oli on an inauguration spree, he has also been awarding major government contracts.

On Friday evening, a meeting of Investment Board Nepal chaired by Prime Minister Oli awarded the tender to develop the 679-megawatt Lower Arun Hydropower Project to India’s Satluj Jal Vidyut Nigam under the build, own, operate and transfer modality.

Whether a caretaker government should award such a big project to anyone is a question that observers have raised.

“Awarding such a big project by a caretaker government may invite problems in the future as we have a very bad history of [governments] not owning projects awarded by predecessors,” said Bipin Adhikari, an expert on constitutional matters, said. “Budhi Gandaki is a good example.”

The Pushpa Kamal Dahal government in May 2017 had awarded a contract to the Chinese firm Gezhouba Group under the engineering, procurement, construction, and financing modality without competitive bidding.

The decision was overturned by the Sher Bahadur Deuba-led government in November 2017, saying there were some procedural flaws while awarding the contract. Since then the fate of the much-hyped project with an installed capacity of producing 1,200 megawatt power is in limbo and it remains uncertain who will build it.

“If an issue over any project is raised in future, then someone has to be accountable,” said Adhikari. “Such big projects that have been initiated abruptly may face risks in the future. When the status of the government is being questioned, the present government should stay away from taking such decisions.”

Such activities of the government could also influence elections, others say.

“These are attempts to influence the elections,” a government secretary said, on condition of anonymity.

It would not be for the sake of the project that it is undertaken, he added.

“Such political ego and competition will hamper development projects and finally they may not be complete on time because none of the sides cooperates with each other in such a divided situation,” the secretary said.

Of the different legal challenges that Oli has been facing since he recommended the dissolution of the House of Representatives on December 20, that his is a caretaker government which cannot take big decisions is one.

On December 25, Oli reshuffled his Cabinet and inducted several ministers as those belonging to the Dahal-Nepal faction had resigned on December 22. Subsequently, a petition was registered in the Supreme Court saying since his had become a caretaker government Oli did not have the authority to appoint ministers.

If Oli’s is a caretaker government and does not have the moral authority to make big decisions is one argument, that his actions are against the election code of conduct is another.

“It is up to the media and the Election Commission to monitor such activities,” said Raghuji Pant, a standing committee member of Dahal-Nepal faction. “We have also drawn the attention of the commission to such matters.”

The Election Commission, however, has not implemented the election code of conduct.

“We will hold a meeting with all political parties and will enforce the election code of conduct,” said Rajkumar Shrestha, spokesperson for the Election Commission.

Generally, election code of conduct comes into effect once the election dates are announced, observers say.

“But in our case, we do not have a definite law about election code of conduct,” said Gopal Siwakoti, who monitors the election process in Nepal. “In practice, when the election date is declared, the process of election begins. But in our case the Election Commission begins implementing the code of conduct only after the formal election process or timetable begins.”

The elections will happen only if the Supreme Court upholds the dissolution of the House. But Oli continues to reiterate that elections will be held on the announced dates of April 30 and May 10.

Oli has not been missing any opportunity to declare that the House will not be restored, a claim that has attracted the attention of the court which has summoned him to be present in person by February 4 to face a contempt case for influencing the court.

For its part, the Election Commission is in a state of confusion and it is not speaking up because it is under the shadow of the Oli government, say leaders who belong to the Dahal-Nepal faction.

“Oli’s intention to visit Dahal’s home district and to inaugurate the city hall and ring road shows how desperate and fearful he is,” said Beduram Bhusal, a Standing Committee member of the Dahal-Nepal faction. “His attempts are to divert public attention from the main issue. But his tactics to win the elections by blaming us or others, by inaugurating projects or by doing any other political stunt will not save him.”

 KP Sharma Oli’s political star rose in 2015 with his co-leadership of constitution-promulgation (along with Sushil Koirala of Nepali Congress). His standing up to India during the 2015-16 border blockade further bolstered his national standing. But his shine seems to be wearing off.

The leader who once vehemently defended the constitution has now been accused of abusing it, even as his decision to dissolve the parliament and call for midterm elections is being tested in the Supreme Court.

Whatever the court’s decision, it is certain to divide the forces involved in constitution-making and promulgation. If the court overturns Oli’s decision, he and his loyalists are likely to criticize the constitution for not allowing the elected prime minister to seek a fresh mandate. They could also question the court’s jurisdiction.

“Even if the court reinstates the parliament, political forces will be divided for and against its decision. Oli loyalists will criticize the unclear provision in the statute and question the court’s supremacy,” says political analyst CK Lal. “If the apex court doesn’t reinstate the parliament, other forces will protest. Even the court has to decide based on the principle of necessity in the absence of a clear provision in the statute: this represents the constitution’s failure”. Lal is among a handful of analysts who have been proclaiming the new constitution’s death since its promulgation.

Some sections of the society already had grievances against the constitution. Division among its guardians may further encourage internal and external dissident forces that were unhappy with the constitution, according to Lal.

Another political analyst Chandra Dev Bhatta offers a different logic for the constitution’s possible failure.

“There is lack of balance between our political culture and spirit of the constitution. The political culture needed to uphold constitutional behavior is yet to evolve in our country. In such a situation no constitution can function,” he argues.

Nepal has adopted seven constitutions in seven decades, and yet they were all contentious.

Bhatta says Nepal’s power-centric political culture contributes to the constitution’s dysfunctionality. “It creates soft social violence and foments uncertainty.”

Lal and Bhatta both agree that as the constitution was promulgated by top political leaders without much discussion in the Constituent Assembly, the statute had a weak foundation right from the start.

Checked constitutional history

The first and second Constituent Assembly (CA) carried intensive debates over whether the prime minister should be allowed to dissolve the parliament. After studying the constitutions of various countries with parliamentary systems, the first CA had suggested some remedies.

The 1990 constitution had given the prime minister absolute authority to dissolve the parliament. The then Prime Minister Girija Prasad Koirala dissolved the parliament in 1994 after MPs of his own Congress party didn’t support government policy and programs.

CPN-UML’s Manmohan Adhikari became prime minister after Koirala, but without the parliament’s majority support. When Adhikari also decided to dissolve the parliament in 1995, just a year after Koirala, the court overturned the decision. The judiciary had to face a backlash when the Supreme Court ordered the reinstatement of a parliament dissolved by a popular communist prime minister.

Then, again, Sher Bahadur Deuba dissolved the parliament in 2002 paving the way for King Gyanendra’s state take-over.

“When one after another government head started misusing the power to dissolve the House, the Supreme Court started scrutinizing the provision,” recalls NC leader Radheshyam Adhikari. “The new constitution thus included conditions that prevented the prime minister from dissolving parliament when he faced trouble in his party.”

During the constitution-making process, parties and lawmakers carried out intensive debates on ensuring government stability through various measures. The Maoists wanted a directly elected executive president, the NC proposed parliamentary system without giving the prime minister the power to dissolve the House, while the UML lobbied for a directly elected executive prime minister.

The Maoists were the largest party in the first CA, but the assembly failed to deliver a new constitution. In the second CA, Congress emerged the largest party and dominated constitution-making process with its agendas.

The second CA agreed to adopt a parliamentary system with strict conditions on when the prime minister could dissolve the parliament. According to former CA members, the prime minister has the right to dissolve parliament only if the House cannot offer an option for an alternative government.

Against social contract

Over 200 advocates have lined up to argue against House dissolution at the Supreme Court.

Defending the writ petitions registered against the dissolution, advocates argue that if Oli’s move is not overturned, it could lead to a collapse of the new constitution.

Lawyers argue that House dissolution is not just against the spirit of the constitution but also against its preamble which states that the country’s sovereignty rests with the people and the prime minister as such cannot act on his own. PM Oli on the other hand argues that he has called for mid-term polls to let people make their choice.

Legal eagles argue that elected representatives must abide by the social contract theory that lays out obligations of people’s representatives to their voters. If the people are the final source of power, says the theory, the executive elected by people’s representatives can’t use executive authority without their consent.

“New conditions were added on parliament dissolution to give the government more stability and to bar the prime minister from being an autocrat. The recent decision on House dissolution undercuts both motives,” says NC leader Adhikari, a member of the two Constituent Assemblies.

“As one of the signatories to the new constitution, Oli was expected to safeguard the constitution and own up its spirit. Yet he has done the exact opposite,” he adds.

The issue of constitution failure has resurfaced also because of division among forces involved in constitution promulgation.

Nepali Congress is expected to benefit electorally from the ruling party’s split. But it too has been demanding parliament reinstatement. NC leaders say that if the court approves of the prime minister’s move, it could herald another cycle of instability. The precedent would allow future prime ministers to act likewise.

“Oli jee dissolved the parliament without allowing the House to exercise its authority to form an alternative government. He has attacked the main spirit of the new constitution. If Oli’s move is endorsed, this constitution’s life could also be short-lived,” Adhikari says.

Addressing a mass rally in Kathmandu last week, Pushpa Kamal Dahal, leader of dissident Nepal Communist Party (NCP), said: “The prime minister, by dissolving the parliament, has tried to undo the constitution, throw out federalism and derail the peace process.”

Constitutional expert Bipin Adhikari has a slightly different take. “The ongoing debate is limited to whether the prime minister has the power to dissolve the parliament without testing the options of forming an alternative government in the House. I hope the court will define it in line with the spirit of the new constitution.” But he disagrees that this represents constitution’s failure. “The majority power in the country is still in favor of this statute”.

Indian hand?

Some suspected the southern neighbor, which had just ‘noted’ the promulgation of Nepal’s new constitution in 2015, of instigating Oli to dissolve the parliament. India had been alienated as Nepali leaders supposedly failed to address its concerns in the new constitution. India then resorted to the infamous blockade.

The prime minister’s House dissolution decision coincided with Nepal visit of Indian Army Chief Manoj Mukund Naravane, and chief of its external intelligence agency the Research and Analysis Wing (R&AW), Samant Goel. This buttressed the argument of India’s direct hand in House dissolution.

“India had just noted the constitution as it had certain reservations. Internally there were dissenting voices and externally our neighbor was not happy about it,” analyst Bhatta adds. “Third, as I said earlier, our political culture and constitutional spirit don’t match. All these factors are causing constitutional problems”.

A section of intelligentsia was already suspicious after Oli decided to incorporate Lipulekh, Limpiadhura and Kalapani in the country’s constitution without holding any talks with India. Even if there were to be a negotiated settlement with India tomorrow, which Nepali government would now dare to amend the constitution to ‘break Nepal’?

CK Lal says: “India may not be involved in fomenting further political instability in Nepal. But it will look to secure its interest whatever transpires next.”

The rise of pro-Hindu leaders in India has been interpreted as a threat to secularism. When asked if India could try to revive the Hindu state in Nepal, Lal says instability could give a boost to such illiberal political impulses. “Hindustan may want to reinstate Nepal as Hindu nation while at the same time Nepal’s bureaucracy and conservative forces want to scrap federalism,” Lal says.