The (NCP) party’s over

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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