Nepal’s politics is now back again to the chief justice’s court–the Supreme Court.

As many as 146 members, who until Friday night were lawmakers, of the opposition alliance filed a joint petition at the Supreme Court with at least seven demands, including reinstatement of the House of Representatives and an order to appoint Congress President Sher Bahadur Deuba prime minister.

The opposition alliance consists of the Nepali Congress, the Communist Party of Nepal (Maoist Centre), the Madhav Nepal faction of the CPN-UML, the Upendra Yadav-Baburam Bhattarai faction of the Janata Samajbadi Party and Janamorcha Nepal.

It was an unprecedented display of unity by over 50 percent of those who until last week were lawmakers against Prime Minister KP Sharma Oli who late on Friday night recommended House dissolution, for a second time in five months, after failing to get reappointed. President Bidya Devi Bhandari endorsed the recommendation and declared snap polls for November 12 and 19.

The petitioners include five former prime ministers–Deuba, Pushpa Kamal Dahal, Madhav Nepal, Jhala Nath Khanal and Baburam Bhattarai–as well as several former deputy prime ministers and scores of ministers.

According to leaders, 61 members from the Congress, 49 from the Maoist Centre, 23 from the Nepal faction of the UML, 12 from the Janata Samajbadi and one from Janmorcha have signed the petition.

A Congress leader said there is enough evidence before the court to quash the President’s House dissolution move.

“What more evidence is required when over 50 percent of lawmakers have appeared in person before the court to say that they had provided their signatures to the President [on Friday],” Gagan Thapa of the Congress party told the Post over the phone after the opposition alliance filed the petition. “Everyone knows that the President took the decision with a malafide intention and there was no objective ground to reject Deuba as prime minister.”

The court now will have to test whether President Bhandari’s decision was legal and constitutional to say Deuba’s claims for the post of prime minister were insufficient.

After being reappointed under Article 76 (3) as the leader of the party with the highest number of members in Parliament on May 13, following his defeat in the confidence vote on May 10, Oli on Thursday asked the President to initiate Article 76 (5) to appoint a new prime minister. A statement from the Office of the President asked lawmakers to lay claim to a new government as Oli wanted to pave the way for the same as there was no political ground to win the vote of confidence.

Constitutional experts said that the recommendation itself was unconstitutional.

After his appointment, Oli was supposed to secure a vote of confidence within 30 days. To invoke Article 76 (5), experts say, either a prime minister appointed under Article 76 (3) has to fail a trust vote or he or she must resign.

However, Bhandari complied with Oli’s orders and gave lawmakers until Friday 5pm to stake claim to the new government.

Oli, however, on Friday reached Sheetal Niwas long before the opposition alliance to stake claim to the government, in what analysts say making a spectacle of himself. Many wondered how Oli could claim to have the backing of 153 lawmakers just a day after asserting that he did not have political ground to secure a vote of confidence. The opposition alliance, however, had provided signatures of as many as 149 lawmakers, who said they backed Deuba as prime minister.

But at 11:38 pm, the President said both Oli and Deuba’s claims were insufficient. And at 1:49 am, she dissolved the House.

Thapa said he hoped that the court would not take long to pass a judgment on their petition.

“It’s a straightforward case,” Thapa told the Post. “We are quite sure the court won’t go against its own interpretation of the constitution made while passing a verdict on Oli’s earlier House dissolution of December 20.”

While overturning Oli’s December House dissolution, the Constitutional Bench said it was illegal and added that the House cannot be dissolved until all the provisions related to government formation are exhausted.

Of the four provisions in the constitution for the formation of the government, Article 76 (5) had been invoked but it had not really come into play, as a new prime minister was not appointed under it.

Experts say the House gets automatically dissolved only when a prime minister appointed under Article 76 (5) fails to secure a vote of confidence within 30 days from the date of his/her appointment.

Bipin Adhikari, former dean of Kathmandu University School of Law, said Friday’s House dissolution is tantamount to a contempt of court, as the Constitutional Bench has clearly explained on what conditions the House can be dissolved.

“How can the President act against a precedent set by the Supreme Court just three months ago?” Adhikari told the Post. “There are even strong grounds this time for the court to reinstate the House compared to last time.”

According to Adhikari, it, however, is not the court that says who should be the prime minister.

“The court can just order the defendants to follow the due procedure,” said Adhikari. “The appointment of a prime minister is a political process. The court can only look into whether the constitutional requirements were fulfilled or not.”

Apart from House reinstatement and appointment of Deuba as prime minister, the petitioners have demanded that the court issue necessary orders, including a writ of mandamus, in the name of defendants not to take action against those who signed in favour of Deuba to appoint him prime minister under Article 7 6(5).

They have also demanded that the court issue an interim order not to implement the decision of the President to dissolve Parliament and hold polls and not to publish the election programmes during this pandemic.

The petitioners have also demanded that the court make necessary provisions to call the House session so as to ensure that the constitutional deadline of presenting the budget on May 29 is not missed.

Besides, they have also demanded that the court stop the caretaker [Oli] government from taking important decisions that can have long-term impacts.

Though the petitioners believe a court verdict is forthcoming soon, it is not clear how long it can take, as last time the court took two months to pass its judgment.

Monday’s petition by the opposition alliance demanding the reinstatement of the House comes exactly three months after the court restored it following Oli’s earlier December 20 dissolution.

The opposition alliance’s petition follows its decision on Saturday that it would fight against the prime minister and President’s unconstitutional moves politically and legally.

Leaders from the opposition alliance say their move of challenging Oli and Bhandari’s House dissolution in the court of law is part of their legal fight.

They will continue to raise voices from various platforms, as street protests are not possible given the pandemic, in their individual capacities as part of their political fight against Oli and Bhandari’s unconstitutional moves, they said.

Meanwhile, Oli on Monday initiated action against as many as 11 members from the Nepal faction.

The UML’s Standing Committee meeting decided to strip 11 leaders, including Nepal and Jhala Nath Khanal, of all party responsibilities and posts as well as party membership for supporting Deuba’s bid to become prime minister.

According to a statement, the party has also sought clarification from 12 other leaders.

All these leaders are among those 26 who supported Deuba’s bid on Friday. They have also put their signatures on the opposition alliance’s petition.

They said they are not worried about the action initiated by their party anymore.

“We will stand by the opposition alliance to safeguard the political achievements,” said Bhim Rawal, vice-chair of the UML who is close to Nepal. “Our alliance may also continue till the next elections.”

But many say the current alliance against Oli may help reinstate the House but it will be too early to say whether all the constituents could stand together until next elections, given their weak moral political foundations.

“It’s hard to predict for how long this bond will continue,” said Lokraj Baral, a former professor of political science at Tribhuvan University. “The current alliance nonetheless looks strong at this point of time, which could be helpful in reinstating the House.”

According to Baral, the constituent groups in the alliance have followed different political ideologies and come from various schools of thought, hence, for how long they can walk together is too early to tell.

Baral said there are enough grounds for the court to restore the House, but if it does not, more political confrontations are likely.

“Oli is a shrewd politician and he has been using the Office of the President very cleverly to his advantage,” said Baral.

The political uncertainty unleashed by Oli amid the coronavirus pandemic which is ravaging the country has already caused concerns among public health experts, doctors and the general populace.

With no certainty when the vaccines will arrive, doctors say it is too early to say when the cases will start to subside. They warned that going for elections could spell a disaster like in India.

Nepal’s Covid-19 death toll has already reached 6,531, with 185 new fatalities reported on Monday. The country reported 7,220 new cases in the past 24 hours. The number of active cases stands at 115,447.

The longer the court takes to pass the verdict on the House dissolution, the more political uncertainty the country will face, which would impact the response to the pandemic, which has remained invariably poor.

Constitutional experts say if the court attempts to fast-track the hearing, an early verdict is possible and that there is enough evidence even to prove malafide intentions of the defendants.

“The President did not give sufficient time to form an alternative government. She took the decision based on assumptions instead of just looking into whether the claimant from the opposition alliance had enough numbers to back him,” said Adhikari. “Above all, the President flouted the Supreme Court’s earlier verdict. And this could be an issue of contempt of court.”

by Tika R Pradhan in The Kathmandu Post, May 25, 2021
https://kathmandupost.com/politics/2021/05/25/opposition-alliance-moves-court-against-house-dissolution