Category: Quotes

Ruling party leaders say the government is not caretaker; opposition says otherwise. Experts are equally divided.

After the announcement on August 4 of the federal and provincial polls for November 20, a debate is raging if the current Sher Bahadur Deuba government has become a caretaker or not.

The answer depends on who you ask.

Ruling parties call it a fully functioning government, but opposition leaders are terming it a caretaker one. Experts are equally divided.

To add to the confusion, parties, including the opposition, have agreed to keep the House of Representatives at least until September 17, as the Election Commission has worked on a schedule as per which the closed list of the candidates for proportional representation needs to be submitted by on September 18-19.

Some say the government will turn into a caretaker one when the election code of conduct comes into force while others say it will become caretaker only after the House term ends.

“This confusion has arisen because we are in a transitional phase as elections are happening after the full term of Parliament,” said Daman Nath Dhungana, a former Speaker. “But we all need to interpret things objectively, without being guided by partisan interests.”

But partisan interests are already in full display ever since the elections were announced.

Pradeep Gyawali, a lawmaker from the main opposition CPN-UML, said on Sunday while speaking in Parliament that the government cannot give business to the House as elections have been announced, implying that such a move could have long-term implications.

One basic principle a caretaker government usually follows in democracies is policy decisions should not be made once elections are announced as they can have long-term implications.

But Nepali Congress leaders say the government turns into a caretaker one only when the prime minister resigns, loses confidence in the House or the House is dissolved.

Min Bishwakarma, the whip of the Congress, told reporters that the government is not a caretaker one as the prime minister has not resigned, has not lost confidence of Parliament and has not dissolved Parliament.

Many, including Congress leaders, say the erstwhile KP Sharma Oli government had rather turned into a caretaker one after he dissolved the House—twice—and declared snap polls.

In the case when the prime minister dissolves the House, election dates have to be simultaneously declared.

Those arguing that the Deuba government is not a caretaker one say this time the elections that have been announced are periodic ones.

The UML, which refused to accept the Oli government had turned into a caretaker one after the House was dissolved, is now saying the Deuba government became a caretaker as soon as elections were announced.

Deputy leader of the UML Parliamentary Party Subas Chandra Nembang, who had told the Post after Oli dissolved the Parliament last year that unless the Election Commission issued the code of conduct the government could take necessary decisions, said on Sunday once the government declares polls, it automatically turns into a caretaker and cannot take crucial decisions.

The Deuba government, however, has continued to take a slew of decisions even after declaring polls.

While it prepares to push some old bills through the House and present new ones, it has transferred some police officials and intends to transfer more. On Monday, the Investment Board Nepal, whose meeting is chaired by the prime minister, took decisions on various hydropower projects. The ruling coalition is also considering bringing the Loktantrik Samajbadi Party in the government, and questions are also being raised whether a Cabinet reshuffle is possible after the declaration of polls.

Experts say since an election is about shoring up democracy and its outcome could send the current rulers to the opposition and vice versa, parties should rise above partisan interests and objectively decide about matters like the term of Parliament and when a government becomes caretaker.

“The parties in the government now could be sent to the other side of the aisle and the opposition party may lead the government after the elections, so all the parties should make an informed decision on such matters,” said Dhungana. “Politicians should speak objectively rather than thinking of serving their current and temporary interests.”

According to Dhungana, in principle, once the government declares the polls, it automatically turns into a caretaker, but the House has continued and this has created more confusion.

Dhungana, however, stressed that it would be better for the government not to take any decisions that could affect the upcoming polls.

“Maybe the government itself should clarify about its status,” said Dhungana.

Some of the decisions taken by the Oli government after the dissolution of the House and declaration of polls were annulled by the Supreme Court.

On June 22 last year, the top court quashed the Oli government’s decision to appoint a number of ministers, saying a caretaker government cannot induct new ministers.

The apex court had also annulled an ordinance brought by the government to amend the Citizenship Act. The decision was taken in response to petitions claiming that a caretaker government cannot take decisions that can have long-term implications.

Chandra Kanta Gyawali, a senior advocate who is also an expert on constitutional law, says the previous Oli led government had turned into caretaker because the House was dissolved.

But since this time the House, which is also an oversight mechanism, is still alive, the government has not turned into a caretaker.

And since it’s the Parliament where a government is born, some say as long as it remains functional, questions will also remain if the current government can be changed. What if the CPN (Maoist Centre), the key coalition partner with 49 seats, pulls out of the government, forcing Deuba to seek a vote of confidence. What will happen in the event of Deuba’s failure to win the vote of confidence?

Radheshyam Adhikari, a senior advocate and former member of the National Assembly, said the problem is a lack of proper conventions in Nepal’s parliamentary system.

According to Adhikari, developed countries and mature democracies function based on conventions rather than laws.

“We have a long ‘election period’… there is a gap of four months between the declaration of the date and the poll day. And it takes about a month to count the votes and install a new Parliament,” Adhikari told the Post.

Section 2(i) of the Election Commission Act 2017 states that “Election Period” means the time period between one hundred and twenty days prior to the election until the day when the election results are made public. But in cases where the date of the election has been declared in a manner in which the time period would be less than one hundred and twenty days, the time period between the date of such declaration and the day in which the final results are made public, shall be considered the election period.

“For how long can the state function with a caretaker government? It’s a peculiar situation in our country. In other countries that have practised the parliamentary system for decades, elections are held within a month,” said Adhikari.

According to Adhikari, a government could be considered a caretaker after the closed list of candidates for proportional representation is filed.

“Until then, the government should function as usual, and it would be better if it does so in consultation with the main opposition,” Adhikari told the Post.

Experts say since the constitution has given the authority to conduct free and fair polls to the Election Commission, it can also tell the government when it turns into a caretaker.

“A democracy is also about good practices. Parties should also focus on parliamentary conventions,” said Bipin Adhikari, a professor and a former dean at Kathmandu University School of Law. “The Election Commission should tell the government that it should ensure an equal playing field for all to ensure free and fair polls.”

Some issues remain though including transitional justice act and seat-sharing, which leaders say will be sorted out.

Amid speculations that elections could be postponed to February, the ruling coalition partners on Wednesday reached an understanding to hold the polls on November 20.

A leader participating in a meeting of the ruling coalition on Wednesday said that the partners have reached an understanding that elections would be held on November 20 and the next Cabinet meeting, most probably on Thursday or Friday, will take a decision to that effect.

On July 6, the Election Commission had recommended November 18 for general and provincial elections.

The delay in declaring the date stoked speculations if the coalition partners were planning to postpone it.

The Election Commission has long been saying that it needs 120 days to prepare for the elections. If elections are held on November 20, the commission will have 112 days for the preparations.

“That will be enough,” Dinesh Thapaliya, chief election commissioner, told the Post on Sunday.

In the Nepali Congress-led coalition, the CPN (Maoist Centre), the CPN (Unified Socialist), Janata Samajbadi Party and Rastriya Janamorcha are partners.

Durga Poudel, a leader from the Rastriya Janamorcha who was present at the meeting, told the Post that the understanding among the partners on holding elections on November 20 should end the speculations.

“The next Cabinet meeting will take a formal decision,” said Poudel.

The government was facing criticism for not declaring the election date even after the commission recommended a date.

As per the existing laws, the government announces election date(s) in consultation with the poll commission.

Some leaders within the alliance, particularly from the CPN (Maoist Center) and the CPN (Unified Socialist), were of the view that the elections could be postponed to February.

But the Election Commission said that since the last general election was held in November-December of 2017, it was not wise to defer it to February 2023.

Prime Minister Sher Bahadur Deuba has long been saying that elections would be held within November.

Deuba’s strategy, according to leaders familiar with the development, is not to delay the polls as it could give room to the communists to come together, which could be detrimental to his party—the Nepali Congress.

Even some leaders of the Nepali Congress wanted to defer the elections to February, but Deuba refused, said a central member of the Congress.

The ruling alliance partners face an uphill task of seat-sharing as the Congress wants to keep at least 100 constituencies, out of 165, where elections will be held under the directly elected system for the House of Representatives. Nepal’s lower house is 275-strong, and 110 members are elected under the proportional representation (PR) system. For seven provincial assemblies, 330 seats are up for grabs under the direct election system and 220 members will be elected under the PR system.

The Congress is under pressure as its coalition partners are demanding at least 80, out of 165 seats in the House, for them.

There’s yet another complication the government has to deal with. Confusion continues as to whether the House can function once the election date is announced.

The government has registered a bill to amend the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014.

The incumbent government wants to get the bill through the House, but conflict victims and human rights activists have questioned some of its provisions, saying they are aimed at granting amnesty even for serious human rights violations.

Earlier, it was said that the government was waiting for the amendment bill on Citizenship Act to pass for announcing the election date. The bill has already gone through both the houses and is awaiting President’s approval.

Now, some say the government may have been waiting for the bill on transitional justice to get through.

“We are of the view that Parliament will continue even after the election date is announced,” said a Nepali Congress leader. “Once the bill on transitional justice gets through, its current term will end.”

Meanwhile on Wednesday, conflict victims met with Prime Minister Deuba and expressed their reservations about some of the provisions in the bill to amend the transitional justice act.

Suman Adhikari, whose father was killed by Maoists in 2014 , told the Post that the prime minister took note of the victims’ concerns and said that he would look into their reservations so as to address them.

Conflict victims are also worried that the government might bulldoze an Act through an ordinance if the House term ends without passing the bill, in a way that exonerates the perpetrators of serious human rights violations

Some legal and constitutional experts, however, say the House should not remain functional after the election date is announced.

Bipin Adhikari, the founding dean of the Kathmandu University School of Law, said that the House term should come to an end once the election is announced.

“Politically and morally… it is not ethical to have the House when the country is set to elect a new set of lawmakers,” Adhikari told the Post.

Ruling party leaders said another meeting of the coalition has been scheduled for Friday to discuss a host of issues, including the House term.

“The next meeting will discuss a wide range of issues—the House term, transitional justice act and seat-sharing, among others,” said Ram Chandra Poudel, a senior Congress leader who also heads a committee to guide the government.

Nepal’s Supreme Court on Monday reinstated its parliament, which was dissolved by caretaker Prime Minister K.P. Sharma Oli in May, and ordered that his rival Sher Bahadur Deuba be appointed as prime minister.

The move deals a major blow to Oli, who was unable to muster a majority in the House of Representatives and had sought to force a fresh election by dissolving parliament on May 22.

Oli’s move had sparked a fresh constitutional crisis in the Himalayan nation, as it struggled to contain an outbreak of coronavirus that saw hospitals overwhelmed and medical oxygen run out. It also marked his second attempt to dissolve parliament in recent months after an initial attempt in December 2020, following a split in his party, was reversed by the Supreme Court in February.

Relatives carry an oxygen cylinder for a Covid-19 patient after refiling them at the Teaching Hospital in Kathmandu, Nepal, on May 11, 2021.

Nepal tries to form a new government as its Covid-19 crisis deepens
After Nepal’s parliament had been reconstituted, Oli lost a confidence vote on May 10 and was removed from his position.

Before his rivals could stake a claim however, he advised Nepal’s President Bidya Devi Bhandari to dissolve parliament, saying neither he nor opposition leader Deuba were able to muster a majority and form a new government.

The opposition decried the move and vowed to challenge it.

On Monday, Supreme Court official Debendra Dhakal said the court had ordered parliament be reconvened within seven days.

It also ordered that Sher Bahadur Deuba, who has previously served four terms as prime minister, be re-appointed as prime minister by 5 p.m. local time on Tuesday.

“The court has not left any room for political maneuvering by the outgoing prime minister,” said Bipin Adhikari, a constitutional expert and analyst.

Deuba, 75, heads the centrist Nepali Congress party. He had attempted to form a new government after Oli failed to garner a majority among lawmakers.

Nepalese supporters of the splinter group in the governing Nepal Communist Party participate in a protest in Kathmandu, Nepal, Tuesday, Dec. 29, 2020. Tens of thousands of supporters of the splinter group rallied in the capital on Tuesday demanding the ouster of the prime minister and the reinstatement of the Parliament he dissolved amid an escalating feud in the party. (AP Photo/Niranjan Shrestha)
Thousands of people march in Nepal against PM dissolving parliament
Nearly two dozen rebels from Oli’s Communist Unified Marxist Leninist (UML) party were expected to support Deuba at the time.

“The court has saved democracy. Now five political parties will form a coalition government,” Deuba said.

Oli was not immediately available for comment. His aide, Rajan Bhattarai, said the court’s decision would be respected – but called it “a wrong political decision, which will have long-term implications on the parliamentary democracy in our country.”

Dozens of Oli’s supporters protested near the parliament building against the decision.

Oli was elected in early 2018 as head of an alliance with the Maoist Centre, a group of former Maoist rebels, promising to end corruption and bring economic development to one of the world’s poorest countries.

But some allies accused him of undermining colleagues and ignoring party decisions in making policies and key government appointments.

A bill to amend Constitutional Council Act comes as the latest case to demonstrate current administration is no different from the previous one in disregarding rule of law.

On July 18 last year, Minendra Rijal, a Nepali Congress leader, said the ruling coalition would show how the government should function.

Addressing the day’s meeting of the House of Representatives to seek support in the vote of confidence motion to Prime Minister Sher Bahadur Deuba, Rijal said the government under the leadership of his party would never go against the spirit of the constitution and would always maintain the dignity of Parliament.

“Nepali people will see how a government should be run,” he said, criticising the outgoing KP Sharma Oli government for misgovernance, dissolving the lower house twice and “ruling the country” through ordinances.

The Deuba government was formed, as per a court order, backed by five parties—Congress, CPN (Maoist Centre), CPN (Unified Socialist), Janata Samajbadi Party and Rastriya Janamorcha—on July 13.

They were protesting against the Oli government saying he failed to maintain the rule of law and to abide by the constitution while promoting corruption.

However, within a year since its formation, the way the Deuba government is functioning shows it is no different from the previous Oli government.

The only difference is that he has not dissolved the House in the last one year, or else Deuba has reapplied Oli’s playbook in earnest, experts and observers say.

“There is no fundamental difference between the erstwhile Oli government and the current Deuba government,” Khagendra Prasai, coordinator of MPhil Programme of Social Sciences at Nepal Open University, told the Post. “The only difference is that we have Parliament in place where the wrongdoings of the government can be discussed.”

Deuba’s party once came down heavily on the Oli government for bringing an ordinance to amend the Constitutional Council Act (Functions, Duties and Procedures) 2010.

Issued on December 15, 2020, the ordinance sought to change the prerequisite for convening the council meeting.

The council, led by Oli, accordingly, recommended 58 individuals to various constitutional bodies on December 15, 2020 and May 9 last year. Among them, 52 were appointed.

At least five petitions against the ordinance and the appointments are sub judice in the Supreme Court.

The Deuba government on Friday registered a bill to amend the Constitutional Council Act at the National Assembly retaining the provisions that were in the ordinance brought by the Oli government.

“It [meeting] shall be deemed to have achieved the required number of members if the chairperson and at least 50 percent of the members are present,” reads a provision in the amendment bill. “The chairperson and a majority among at least 50 percent of the members can take a decision if the consensus bid fails.”

The constitution has envisioned six members in the council, with the prime minister as its chair. The chief justice, House Speaker, National Assembly chair, leader of the opposition and deputy Speaker are members.

The position of the deputy Speaker, however, is vacant. If the bill gets through parliament, the council’s meeting can convene in the presence of the prime minister and two other members. The three can take a decision.

Earlier in December 2020 and May last year, the council led by Oli made the recommendations in the presence of Chief Justice Cholendra Shumsher Rana and National Assembly chair Ganesh Timilsina.

“In essence, the present bill is similar to the ordinance issued by the erstwhile government,” advocate Om Prakash Aryal, who challenged the Oli government’s ordinance and appointments that were made accordingly.

“This is against the spirit of the constitution.”

There shall be deemed to have been achieved the quorum for holding a meeting if the chairperson and at least other four members are present, says the existing Act.

Oli had defended his move of issuing the ordinance saying the main opposition leader [Deuba] constantly refused to participate in the meeting. Since an infighting was going on in the then ruling Nepal Communist Party, born out of a merger between the CPN-UML and Maoist Centre, Speaker Agni Sapkota showed no interest in participating in the council meeting. Sapkota was elected House Speaker from the Maoist party.

Two members’ reluctance to attend the meeting may have prompted Oli to issue the ordinance, but the way appointments were made elicited criticism that individuals were handpicked based on certain interests rather than merit.

Now Deuba’s intention also looks the same.

Constitutional experts say the Deuba government has disrespected the judiciary by introducing the bill with the provisions in the ordinance that was challenged in the court.

Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, said it is paradoxical to see the government, which was formed because the Oli government was running amok, is doing just the same.

“This is worrisome. It doesn’t seem the Deuba government has respect for the constitution,” he told the Post. “It looks like a competition is going on among the parties in setting bad examples.”

On the day Deuba was seeking the vote of confidence last year, Congress leaders said issuing one ordinance after another was an attack on the rule of law and disrespect of the Parliament and vowed not to engage in such acts.

The commitment did not last long.

Within a month of its formation, the Deuba government on August 17 last year issued an ordinance to amend the Political Parties Act easing a split of the parties.

Revising an earlier provision which required the backing of at least 40 percent of Central Committee and Parliamentary Party members to register a new party, the ordinance lowered the ceiling. After the amendment, any group having support of over 20 percent of Central Committee or Parliamentary Party members could register a new party at the Election Commission.

The ordinance was issued to ease the split of the CPN-UML.

The provision was brought because the Madhav Nepal faction of the party had the support of just 20 percent members in the Parliamentary Party.

What made the Deuba government look bad was it was his party that had vehemently criticised the Oli government for issuing a similar ordinance back in April 2020. The move, however, led to the merger between the Samajbadi Party and the Rastriya Janata Party to form the Janata Samajbadi Party. That the Janata Samajbadi has split again is a different story altogether.

The Deuba government in the last one year has issued a dozen ordinances, some of which just days before House sessions were summoned.

“The constitutional provision that allows the government to issue an ordinance has been grossly misused by both the governments,” said Prasai, the professor.

Article 114 of the constitution says if, at any time, except when both Houses of the federal parliament are in session, circumstances exist which render it necessary to take immediate action, the President may, on the recommendation of the council of ministers, promulgate an ordinance.

That political culture in Nepal is on the wane is just what everyone has been talking about for a while, with experts and observers constantly warning politicians to mend ways through their commentaries and interviews.

Kleptocracy has become the norm and political corruption and cronyism have increased, they say.

The five parties in the current government fervently spoke against the Oli government, charging it with promoting corruption and anomalies during its tenure. Now the Deuba government is accused of the same.

A recent case in point is tweaking of tax rates by Janardan Sharma who has now resigned after charges that he involved outsiders in making the budget. Deuba and Maoist chair Dahal clearly seemed to have been trying their best not to lose him as finance minister.

Observers say the Congress calls itself a democratic force but that is not reflected in Deuba’s actions.

Daman Nath Dhungana, a former Speaker and a civil society member, said like the Oli government, the incumbent government too is flouting the constitution in an obscene fashion.

“The actions of successive governments show attempts are being made to make the present constitution dysfunctional,” Dhungana told the Post. “Someone who doesn’t follow the constitution and the rule of law cannot be democratic.”

On Saturday, a minister from the Madhesh Pradesh government briefly shared his experience on two governments led by Oli and Deuba.

Speaking at a discussion organised by Kantipur Media Group in Janakpur, Bharat Kumar Sah, internal affairs minister, said the government led by Deuba is no different from the one led by Oli when it comes to devolution of power.

Oli was criticised by different quarters as well as the Congress for being anti-federal.

“The Oli government functioned with a centralized mindset and the present government is no different,” said Shah, who represents the Maoist Centre, a coalition partner in the Deuba government. “There’s no difference between the two governments at all.”

The government, however, has defended its bill to amend the Constitutional Council Act, saying it is necessary as there is a legal void after the ordinance by the Oli government was repealed.

“Frankly speaking, the provision was included by the Prime Minister’s Office to ease the decision making in the council,” said a minister in Deuba cabinet. “However, the bill is different from the ordinance. It makes it mandatory to have the presence of three people including the chairperson to make decisions while only two could do as per the ordinance.”

Questions remain what happens if House expires before his retirement. Some experts argue he can return to office.

The impeachment motion against Chief Justice Cholendra Shumsher Rana has remained pending at the Parliament Secretariat for nearly five months now. Except for forming the Impeachment Recommendation Committee, the House of Representatives has not taken any step to decide on the motion. Rana has remained suspended since February 13, the day the motion was registered at the Parliament Secretariat.

As many as 98 lawmakers from three ruling parties—Nepali Congress, CPN (Maoist Centre) and CPN (Unified Socialist)—had registered the motion levelling 21 charges that he promoted corruption and facilitated the entry of middlemen in the judiciary, failed to maintain the dignity of the judiciary and misused the constitutional responsibility by demanding a share in the government, among others.

Even though the recommendation committee was formed, the lower house is reluctant to send the motion to the committee to study the allegations. The main opposition CPN-UML has been demanding that the motion be forwarded to the recommendation committee without delay.

“It is the responsibility of the House to decide on the motion. Let it decide whether it endorses or not,” Bishal Bhattarai, chief whip of the UML, told the Post. “The judiciary must not be kept rudderless for long.”

Deepak Kumar Karki has been leading the Supreme Court as the acting chief justice.

Rana, who was appointed chief justice on January 2, 2019, will retire on December 12 on the grounds of age.

Questions, however, have emerged as to what will be the status of Rana if the current term of the House ends before his retirement.

The Election Commission has said it is for holding the federal and provincial polls by the third week of November.

There is no legal clarity as to how long the lower house can function after the election date is announced. However, even if it continues until one day prior to the elections, say in the third week of November, there will be more than three weeks before Rana retires. Even if the House term is not ended immediately after the elections are announced, it won’t exist from the day of voting.

Article 111 (10) of the constitution says if the House of Representatives is dissolved or its term expires when any bill is under its consideration or when any bill passed by the House of Representatives is under consideration in the National Assembly, such bill shall lapse. However, the constitution doesn’t say anything about the status of the impeachment motion.

Radheshyam Adhikari, a former member of the National Assembly who is also a senior advocate, said the framers of the constitution couldn’t envision a situation like this where the tenure of the House expires without deciding on an impeachment motion.

“This is a case of sheer lack of accountability of political parties. The motion cannot be kept pending without taking it forward to a vote,” he told the Post. “There is no clarity as to what happens to the motion and what will be the status of Rana after the present House comes to an end.”

Officials at the Parliament Secretariat say similar to other bills, the impeachment motion too will become void once the tenure of the present House comes to an end.

“I think the impeachment motion cannot be transferred to the new House of Representatives,” Rojnath Pande, a spokesperson for the Parliament Secretariat, told the Post.

But even if the motion is forwarded to the new House, assuming that it can be transferred, there will be a gap between the day the voting takes place and the new House is formed. Going by the assumption that voting will take place in the third week of November, questions remain what will happen if Rana decides to return to office a day after voting, as the impeachment motion will remain in a state of limbo.

If the motion becomes void like any other bills once the term of the present House ends, Rana has that window to return to office, according to constitutional experts.

“I don’t think there will be any legal barrier for Rana to return to his office if the tenure of the lower house expires without endorsing the impeachment motion against him,” Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, told the Post. “However, the Supreme Court administration can ask him to seek legal clarity by filing a petition in the court before resuming office.”

Adhikari says the way the parties are delaying to act on the motion by not commencing the impeachment proceedings gives ample room to suspect that there is some understanding between the parties and Rana.

“The understanding could be that the parties won’t impeach him and will be allowed to retire as chief justice and that he doesn’t attempt to return to work,” said Adhikari. “Otherwise there is no reason to keep the motion pending for months. This is a wrong practice the ruling parties are setting.”

Experts have long said that although the constitution allows filing an impeachment motion against the chief justice, Nepali parties have misused the provision.

As per Article 101 (2) of the constitution, one fourth of the total number of the then members of the House of Representatives can move a motion of impeachment against the chief justice on the ground of his or her failure to fulfill his/her duties of office because of serious violation of the constitution and law, incompetence or misconduct or failure to discharge the duties of office honestly or serious violation of the code of conduct.

Earlier in April 2017 also, the Nepali Congress and the CPN (Maoist Centre) had filed an impeachment motion against then chief justice Sushila Karki, leading to her suspension. But before the impeachment motion could be proceeded, the Supreme Court had quashed it following which Karki had returned to work. It was a Rana-led bench that had quashed the impeachment motion.

But there is also confusion whether the person against whom impeachment motion gets suspended immediately after the motion is registered at the Parliament Secretariat.

Constitutional experts say the suspension of Rana should have come into effect only after the commencement of the impeachment proceedings as per Article 101 (6).

“Commencement of the proceeding is deemed to have begun only after the impeachment motion is presented in the House which is yet to happen,” said Adhikari. “The Parliament Secretariat wrote to the Supreme Court immediately after the impeachment motion was registered leading to Rana’s suspension. That is against the spirit of the constitution.”

Rana has been the most controversial figure in the history of Nepal’s judiciary. In October last year the justices of the Supreme Court started their protests by boycotting a full court meeting called by Rana. They consequently boycotted the benches regularly.

Lawyers had held protests for months boycotting the benches and organising a series of protests on the premises of the Supreme Court. Their protest concluded only after the impeachment motion was registered at the Parliament Secretariat.

Political parties, however, dragged their feet even as calls grew for them to file an impeachment motion against Rana. But on February 13, three ruling parties moved the motion suddenly, for which they have failed to offer any convincing justification.

Experts have told the Post in the past that it’s incumbent upon the parties that sought to impeach Rana press for initiating the impeachment proceedings.

On whether there’s room for Rana to return to work, some say no.

Former chief justice Anup Raj Sharma, however, says Rana cannot return to office regardless of the expiry of the term of the House because the serious allegations he faces continue to remain on record.

“In my opinion, the motion will get continuation in the next parliament as well. Many countries have such practice,” he told the Post. “Rana cannot return to the Supreme Court until he comes clean.” Rana will retire as chief justice and will be getting post-retirement benefits accordingly if the House fails to take decision in the motion before his retirement.

Rana refused to say anything on the issue.

“I have no comments,” he said.

The airport planned in Nijgadh, Bara, lies 175 kilometres south of the Capital.

A 3-2 ruling of the Supreme Court has quashed all government decisions made earlier for the development of a mega international airport in the southern Tarai plains.

The top court, however, has kept options open to construct the international airport, an alternative to Kathmandu’s Tribhuvan International Airport.

The full text of the verdict on the Nijgadh International Airport by an extended full bench comprising justices Hari Krishna Karki, Bishowambhar Prasad Shrestha, Ishwar Prasad Khatiwada, Prakash Man Singh Raut and Manoj Sharma was released by the court on Wednesday. The preliminary ruling was issued on May 26 after concluding the hearing process.

Shrestha, Khatiwada and Raut have ordered the authorities to build the airport by conducting a proper environmental impact assessment ensuring that the environmental damage is minimal.

The justices, however, have not specified where the new facility should be built.

The airport planned in Nijgadh, Bara, 175 kilometres south of the Capital, was deemed an alternative to Kathmandu’s Tribhuvan International Airport.

“While it is natural for any development activities to cause environmental degradation, every possible attempt must be made to find alternatives to minimise such degradation,” says the court order.

The government, on different occasions, had made three crucial decisions.

In March 2015, the Cabinet gave a go-ahead to the Tourism Ministry for demarcation of the boundary of the long-planned then Second International Airport in Nijgadh. The ministry had proposed delineating an area of 8,045.79 hectares [80 sq-km] for the proposed second international airport with two runways.

The government then began the process for environmental and social impact assessment.

The environmental and social impact assessment report submitted to the Tourism Ministry in February 2017 envisaged cutting more than 2.4 million small and large trees to build the airport.

The proposed airport in Bara, slated to become the largest in South Asia in terms of area, had been embroiled in a storm over its environmental impact.

Environmentalists then suspected the motive of the government months after it was found that the environmental impact assessment report was flawed. Some parts of the report had a hydropower component which later was exposed as “copied and pasted”.

The environmental and social impact assessment report submitted to the Tourism Ministry in February 2017 envisaged cutting more than 2.4 million small and large trees to build the airport. 

The third key decision was made in September 2017 after the completion of the environmental and social impact assessment report.

The Civil Aviation Authority of Nepal, the project executing body, had assigned the Nepal Army to build access and perimetre roads and clear trees at the proposed construction site. The government had allocated Rs1.5 billion for this purpose.

The court has found the Environmental Impact Assessment report approved by the Ministry of Forest and Environment on May 23, 2018 to be erroneous and said the decision to fell trees on 8,045.79 hectares and other decisions taken as per the report were faulty.

The order doesn’t rule out the necessity of the construction of another international airport.

It, however, says while implementing such a mega project, the concepts of sustainable development, intergenerational justice and biodiversity protection should not be overlooked or undermined.

The selection of the area for the construction of the airport should be objective and logical, the court’s ruling reads.

While the environmental impact assessment should follow due legal procedures, the size of the airport and its capacity should be determined through proper consultations with environmentalists, wildlife experts, airport management experts, economists, sociologists and administrative experts with all possible alternatives to reduce damage and losses, according to the ruling.

Justices Karki and Sharma, however, have observed the need for building the airport within the Nijgadh area by ensuring minimal damage to the environment.

“It is a concurring verdict,” Bimal Poudel, spokesperson for the Supreme Court, told the Post. “The two justices have different opinions only in providing alternatives for the airport construction.”

Karki and Sharma, similar to the ruling, have said there has to be a minimal damage to environment and biodiversity while constructing the airport.

However, while the verdict doesn’t say where the airport should be constructed, they have suggested that the airport can be constructed in the same place with some changes in alignment so that fewer trees need to be felled.

“Conduct the study prioritising that the forest area remains intact by constructing the facility on public land, to the south of the proposed area that incorporates Tangiya basti [settlement],” reads their opinion. “If it is still necessary to chop trees from the jungle area, ensure that new saplings are planted as prescribed by the law and they are protected until they grow up.”

One of the three justices told the Post that the detailed order is clear in itself.

“Our observation is that initial decisions by the government could be detrimental to the environment. That’s why those decisions have been quashed,” the justice told the Post on condition of anonymity. “The judgement does not say an airport should be built in Nijgadh or not. What the judgement says is that the existing study is not enough.”

“What we have said is, first conduct the study by using all necessary experts and then build the airport wherever it is appropriate. This is what we have said [in the verdict],” added the judge.

“We, however, have said the way the land was allocated for the project was wrong. Since the government has allocated more forest land where more trees than necessary would have to be felled, we have annulled the decision for the reason that biodiversity would be adversely affected and the environment damaged,” he said.

“We cannot determine the alternative, which should be done by the experts. We have just said necessary technical experts should study and make the right decision. We have not said that an airport must not be built at Nijgadh if it is the best alternative to other places. But allocating an unnecessarily large jungle area was wrong. The condition is that the experts must find out the place where the environmental damage will be the least,” said the justice.

On December 6, 2019, Supreme Court Justice Tanka Bahadur Moktan had issued a stay order asking the government to immediately stop the felling of trees at the site, which a division bench of Chief Justice Cholendra Shamsher Rana and Justice Kumar Regmi upheld on December 22 that year.

Nine individuals, including environmentalist Ranju Hajur Pandey and former secretary Dwarika Nath Dhungel, had filed the writ petition.

The airport planned in Nijgadh, Bara, 175 kilometres south of the Capital, was deemed an alternative to Kathmandu’s Tribhuvan International Airport. 

The Investment Board Nepal decided to move ahead with the project regardless of the court ruling and invited potential bidders to submit proposals, insisting that the court order only prevented them from felling trees and did not say that all work should be stopped.

In September 2019, the government shortlisted Zurich Airport International AG as a single company to work on a public-private partnership model for the construction of the airport.

The board had received letters of intent from eight companies based in seven countries, including Nepal. On January 17, 2020, the board formally asked Zurich Airport to submit a business proposal.

Under the public-private partnership modality of build, own, operate and transfer, the Swiss company would fully fund the construction.

Zurich Airport was required to state in the business proposal for how long it would operate the airport before handing it over to Nepal.

The last date for submitting the document was September 30, 2020; but following the court order, Zurich International Airport AG asked for a time extension.

The Swiss company made no further official communication after that.

An advocate who participated in the hearing says it is a landmark verdict towards the protection of the environment.

“The court doesn’t say the airport is not required,” senior advocate Dinesh Tripathi told the Post. “It only says don’t construct it in the proposed spot which may cause a huge loss to the environment and biodiversity.”

The airport can be shifted towards Simara or towards the south of the proposed area, he said.

“It’s a welcome decision,” said Sanjiv Gautam, former director general of the Civil Aviation Authority of Nepal.

“The 8,000 hectares is not required to construct the facility as proposed by the government. A modern facility could be constructed on 2,000 hectares which can host at least three runways if required in the future.”

“So, if the government opted to shift the airport to the south, it would reduce 75 percent of damage to the jungle in Bara,” said Gautam.

“That means, the number of trees that need to be felled would come down to a maximum 500,000 [around 200,000 big trees and 300,000 pole sized trees] from the earlier plan to cut 2.4 million,” said Gautam. “That will be justice for the environment too.”

Gautam said that as the public has almost “no trust” in the government, it should be ensured that compensatory tree plantation takes place before the airport is constructed.

The fate of the $3.45 billion Nijgadh International Airport [in three phases] had been hanging in the balance for years, with successive governments pushing for it and environmentalists resisting it equally fervently, citing massive damage to the environment, biodiversity, local communities and wildlife that the touted project would cause.

The first phase of the project is estimated to cost Rs120 billion as per the internal assessment of the Civil Aviation Authority of Nepal.

The proposed construction site lies adjacent to the Parsa National Park, which is a forest corridor for big wildlife like tigers and elephants, and home to rich biodiversity.

The entire area is blanketed in dense forests of Shorea robusta trees, also known as sal or sakhuwa.

The government has poured more than Rs2 billion into the project so far. According to Civil Aviation Authority officials, nearly Rs800 million has been distributed in compensation to the project-affected people.

The court has found the Environmental Impact Assessment report approved by the Ministry of Forest and Environment on May 23, 2018 to be erroneous and said the decision to fell trees on 8,045.79 hectares and other decisions taken as per the report were faulty. 

Last year, the Civil Aviation Authority spent Rs300 million to prepare a revised master plan. The master plan too was drafted when the project’s future was in limbo causing huge losses to the government.

In 2018, the Civil Aviation Authority had started work to prepare an airport master plan and detailed design of the first phase of Nijgadh airport, but the scheme landed in controversy over potential misuse of around Rs700 million. It was then suspended as officials feared it might attract the attention of the anti-graft agency.

Again in January 2020, the national pride project under the authority invited expressions of interest from potential consultants for preparing an updated master plan for the airport.

But this time, the authority decided not to include the detailed design component. The detailed design is normally prepared by the company that wins the project contract. The plan too fell apart.

However, the Civil Aviation Authority prepared the master plan at Rs300 million last year taking advantage of Covid-19 when the entire nation’s attention was transfixed on the pandemic, according to the sources privy to the matter.

With this master plan, currently the government owns two documents. One document prepared by a South Korean company, however, remains unopened because the government has to pay for it to own it.

In April 2012, Landmark Worldwide Company of South Korea conducted a detailed feasibility study for the airport at a cost of $3.55 million and submitted its report to the government.

The costs, if added with inflation, currently would hover to more than Rs700 million, according to the Tourism Ministry sources.

In 1995, the government initiated discussions to construct a second international gateway in the plains as an alternative to Nepal’s only international airport in Kathmandu.

The decision followed two deadly aviation disasters involving Thai Airways and Pakistan International Airlines in the hills surrounding Kathmandu in 1992. This gave momentum to discussions on an alternate airport and how the difficult topography of Kathmandu poses a challenge for even experienced pilots to land.

The project remained on the drawing board for two decades, and gained renewed urgency after a Turkish Airlines aircraft skidded off the runway in Kathmandu in March 2015, causing the airport to remain closed for four days.

Legal experts say the judiciary has the authority to check the legal compliance and the Supreme Court has rightly done so in the Nijgadh airport’s case.

“The verdict is balanced, corrective and prescriptive,” Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, told the Post. “It hasn’t intervened in the executive’s authority to decide where to construct the airport. It has only said due legal process needs to be followed strictly.”
 

Government doesn’t need to dissolve House, it can simply prorogue ongoing session which means the end of its tenure, an expert says.

The Election Commission said on Friday that it has started preparations to hold the federal and provincial elections by the third week of November.

Speaking at a meeting of the parliamentary committee on Women and Social Affairs, Chief Election Commissioner Dinesh Thapaliya said that the elections will be held by November 25.

Meanwhile, Minister for Federal Affairs and General Administration Rajendra Shrestha said the commission has proposed holding the elections in a single phase on November 16, or on November 14 and on November 19 if they are to be held in two phases.

“The government will announce the poll date soon,” he said while addressing the municipal assembly of Kathmandu Metropolitan City on Friday. “The federal and provincial elections will be held in the next four or five months.”

As per the law, the government announces the poll dates in consultation with the commission.

There is, however, one confusion that no one has been able to address. Till when the House of Representatives can function once the election is announced?

Since 1990, after the restoration of democracy, the parliament’s term is fixed for five years. However, Nepal’s democracy has been fragile and constitutions over the years—the country has adopted three charters since 1990—have created quite a confusion.

Gopal Nath Yogi, secretary at the House of Representatives, said there is no legal clarity.

“When a House is prematurely dissolved, poll dates are announced simultaneously. The country then goes to snap polls. However, in case of regular elections, there is no clarity as to how long it can function after election dates are announced,” Yogi told the Post. “It is up to the government when to end the tenure of Parliament.”

As per Article 85, the term of the House of Representatives shall be of five years unless dissolved earlier. It, however, doesn’t say whether or not the House can function after the poll dates are announced.

Usually, dates are announced 120 days prior to the elections, so as to give ample time to the Election Commission for preparations.

A few days ago, the commission made it clear that the current term of the House will be until December 8, clearing the confusion as to when it will complete its five years.

The commission said it has taken December 8, 2017 as the date of commencement of the Parliament tenure as per the House of Representatives and Provincial Assembly Elections Acts. It decided to fix December 8 as the commencement date, saying that on this day the winners of both federal and provincial elections under the first-past-the-post category were announced.

In 2017, the elections for the House of Representatives and the seven provincial assemblies were held in two phases. The first phase of elections was held on November 26 and the second on December 7.

Commission officials say they cannot say what happens with the lower house once the election dates are announced.

“We are not in a position to say for how long Parliament can function after the election dates are announced,” Yagya Bhattarai, a joint secretary at the commission, told the Post.

In some parliamentary democracies like neighbouring India and the United Kingdom, there are some provisions in place to guide the term of the House.

In India, Article 83 (2) of the constitution says unless sooner dissolved, the House of the People or Lok Sabha shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as dissolution of the House.

Since the first meeting of the 16th Lok Sabha was held on June 4, 2014, when members were administered oath, the term of that Lok Sabha was to expire on June 3, 2019. It, however, was dissolved by the Narendra Modi Cabinet on May 24, 2019 because he was set to take the oath as prime minister again after his party won the elections held from April 11 to May 19. This means the Lok Sabha was very much in place when the general election took place.

Modi was sworn in as India’s prime minister for a second term on May 30, 2019, a week after he dissolved the Lok Sabha.

In the United Kingdom, the general election is guided by the Fixed-term Parliaments Act 2011. The Act provides that Parliament is dissolved automatically after five years. Parliament is dissolved automatically 25 working days before a general election. Unless a general election is triggered outside of the five-year period, as per the Fixed-term Parliaments Act, the next date of the general election is at five-year interval on the first Thursday of May.

If the elections were to be held by November-end, the government has to announce the dates by the end of next month, so as to allow 120 days, preferably, to the Election Commission for preparations.

Legal experts said confusion has arisen in Nepal because there is no legal provision. They, however, say the present government has an opportunity to address the confusion for good by ending the tenure once the election dates are announced.

“The ongoing House must come to an end once the election dates are announced,” Bipin Adhikari, a professor and former dean of Kathmandu University School of Law, told the Post. “However, as there are crucial bills pending, the government can wait to end the House until they are ratified.”

The Parliament has as many as 61 bills including the replacement bills to the ordinances to discuss and endorse. Some of the bills are related to the implementation of federalism and have been in the House for the last four years or so.

Adhikari said the government doesn’t need to dissolve the House, it can simply prorogue the ongoing session which automatically means its tenure can end.

There’s no guarantee that parties will field new faces in the upcoming elections. Incumbent lawmakers who want to run for yet another term will launch their election campaigns as soon as the dates are announced.

“Conducting the election campaigns while also enjoying the pay and perks from the state is not a good practice,” said Adhikari. “It will amount to misuse of the state resource.”

Experts on parliamentary affairs say if there is legal confusion, the government must address it so as to set a precedent so that there won’t be similar confusion in the future.

According to Daman Nath Dhungana, a former Speaker, the best action will be ending the current term of the House as soon as elections are announced.

“It would be illogical to continue the business of the lower house even after the election dates are announced,” said Dhungana.

Some observers say there is a need to review provisions to make way for generational change and allow new faces to lead.

Roughly one third of local representatives have been re-elected from this month’s local elections. Once they complete their second term after five years, they won’t be able to contest again, even if they perform exceedingly well.

Article 216 (7) of the Constitution of Nepal says a person who has been elected as mayor for two terms will not be eligible to be a candidate in municipal elections. Similarly, Article 215 (7) has a similar provision for chairpersons of rural municipalities.

While there is a two-term cap for local representatives, there is no such provision for other high-level positions like prime minister, chief minister, minister or lawmakers. And this gives an opportunity for politicians to assume office as long as they choose to, thereby preventing generational change in the leadership positions, observers say.

Incumbent Prime Minister Sher Bahadur Deuba is currently serving his fifth term. Leaders like KP Sharma Oli and Pushpa Kamal Dahal have already become prime minister twice. Most of the senior leaders like Madhav Nepal, Jhala Nath Khanal and Baburam Bhattarai have served once. There are several politicians who have become ministers multiple times.

The problem, say observers, is not that politicians continue to seek multiple terms. The problem is their failure to deliver, according to them.

Addressing a meeting of the National Assembly on Monday, its member Khim Lal Devkota said that the time has come to impose a cap of a maximum of two terms on the executive and legislative positions at federal and provincial levels, something similar to that of the local level. He said the tradition of allowing a single person to lead the government or become lawmaker as long as s/he desires is wrong, which must be revisited without delay.

If the results of the local elections are anything to go by, when the country holds general elections later this year, a hung parliament is most likely. And the most likely contenders for the prime ministerial post will be Deuba, Oli and Dahal who are 75, 70 and 67 years old, respectively.

“There is no difference between monarchical and democratic systems if the same [or just a handful of] persons continue to rule until s/he expires,” Ram Krishna Tiwari, chief of the Central Department of Political Science at the Tribhuvan University, told the Post. “It is already late to amend the constitution to impose the cap.”

Different provisions in the constitution must be amended if a two-term cap were to be implemented. And such proposals need to be passed by a two-thirds majority of the federal parliament.

In his address to the National Assembly, Devkota urged all the parties to come together for a revision of the constitution and other laws to prevent a single person from becoming prime minister, minister or lawmaker for more than two terms.

In the United States, for instance, one could contest for president as long as s/he wished until 1951, when the US constitution was amended to put a two-term cap. The 22nd amendment to the US Constitution states, “No person shall be elected to the office of the President more than twice.”

Devkota, who is also an expert on federal affairs, said without the restriction of two terms, the same old faces will continue to occupy the political space barring not only the next generation but also other politicians with the potential for delivering, from holding the position of power.

Most of the central level leaders of political parties across the spectrum have been around since 1990 and have been the major players of the game of musical chairs.

“Allowing the same old faces to be in power for several tenures will only stoke pessimism among the general public,” he told the Post.

Nepal has not had a full-term government since the restoration of democracy. In the last three decades, until 2018, the average tenure of a government has been nine months. The KP Sharma Oli government had the mandate to govern for a full term, but it too fell in little over three years, helping Deuba come to power.

Experts say a person, in general, can have a vision to lead just for a certain period. The same person may not be able to provide leadership for decades in a society that is changing so rapidly. A change in the leadership raises chances for new persons with new visions to guide the society and the country.

But for the new generation to take over, the old guards need to give way.

Bipin Adhikari, a professor at the Kathmandu University School of Law, says limited opportunity for the new generation in leadership is also a reason behind the political instability in the country.

According to him, frequent splits, guided by certain politicians’ desire to attain power, also lead to instability.

“It is quite reasonable to allow a person to be in a position for a maximum of two tenures,” he told the Post. “Politics is not a profession. The road must be left open for the new generation to take over.”