The decision by a five-member Constitutional Bench of the Supreme Court of Nepal to yet again overturn Prime Minister Khadga Prasad Oli’s dissolution of the House of Representatives was expected. Mr. Oli’s decision, ratified by President Bidhya Devi Bhandari who repeated the action taken in December 2020, came about in controversial circumstances in late May.
After both Mr. Oli and the Nepali Congress’ Sher Bahadur Deuba were unable to establish majority support in Parliament in trust votes, they presented claims to the President with signatures affirming support. Mr. Deuba’s claim presented to Ms. Bhandari with signatures of 149 legislators was more valid than Mr. Oli’s, whose claim of support from 153 lawmakers were based on signatures of the leaders of the parties rather than from each individual.
The discrepancy in Mr. Oli’s claims was due to the fact that both the ruling Communist Party of Nepal (Unified Marxist-Leninist) (UML) and the Janbadi Samajwadi Party (JSP) in the opposition were vertically split with rebel factions supporting Mr. Deuba’s candidacy, even though the parliamentary leaders of the parties gave their signatures affirming support for Mr. Oli.
Right before the President’s decision, Mr. Oli had asked her to invoke Article 76 (5), which allows the President to appoint a member with majority support of the House through representation. However, the clause clearly specifies that this is possible only if the Prime Minister goes through a trust vote (Article 76 (3)) and Mr. Oli’s ploy to seek the President’s invocation of Article 76(5) raised the opposition’s hackles.
Ms. Bhandari rejected both claims and decided to dissolve the House and called for general elections to be held in November.
New PM
The Supreme Court has now not only overruled Mr. Oli’s decision to dissolve the House, but went on to rule that the rejection of Mr. Deuba’s claim with the support of 149 legislators of the 275-member House was unconstitutional as per Article 76(5). This led to Ms. Bhandari’s appointment of Mr. Deuba as the new Prime Minister, who was set to be administered the oath of office and secrecy on Tuesday evening after Mr. Oli’s resignation.
The 149 lawmakers supporting Mr. Deuba’s candidacy included those from Pushpa Kumar Dahal-led Communist Party of Nepal (Maoist-Centre), the Baburam Bhattarai-Upendra Yadav led faction of the JSP and Madhav Nepal-Jhalanath Khanal led faction in the ruling UML.
What’s next
The Supreme Court’s ruling also offered a way out of the political impasse– the Bench has allowed lawmakers to utilise their individual agency during the trust vote by making it clear that they are free to defy their parties’ whips. But in a party system that thrives heavily on patronage, whether individual lawmakers will apply such an agency during the trust vote remains to be seen.
It is still not clear if Mr. Madhav Nepal’s faction within the UML will decide to vote formally for Mr. Deuba in the trust vote. Already Mr. Oli has sought to avoid a split within his party by coming up with concessions to the Nepal-Khanal faction and this could still throw a spanner in the works for Mr. Deuba.
If Mr. Deuba fails again, the extended stalemate could only result in calling for fresh elections later this year.
President's role
Nevertheless, the Supreme Court’s decision is yet another rebuke of Mr Oli’s attempts at one-upmanship that set the stage for a constitutional breakdown. The ruling also brings scrutiny on the role of Ms. Bhandari whose decisions to rubber-stamp her former party colleague Mr. Oli have now been overturned twice by the Supreme Court.
The President’s office had in fact argued in a petition to the Court last month that her actions cannot be subject to a judicial review, but the verdict categorically rejected this view by saying, “The action taken by the President falls under the executive function. In such a situation, if the President’s moves are kept out of the judicial review it will be an attack on the principle of the separation of power, control and balance”, as reported in The Kathmandu Post.