What if polls fail to happen even if the way for it were cleared

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.”