To be honest, if not a bad PR exercise, it is shameful to see some MCC officials, probably native US citizens, resorting to Nepali language with their American accent, advocating for MCC in the social media. Even a Chinese journalist was writing in an online news portal “Why Nepal must say no to MCC?” equating MCC with the 1816 Sugauli Treaty of Nepal with British India and 1950 Treaty of Peace and Friendship with India that have considerably undermined Nepal’s sovereignty.

Propagation of MCC in the local TV channels too is going to leave negative rather than positive impacts to a sarcastic Nepali audience. It is difficult to understand why a rich country is pushing so hard to hand over alms to a poor country when everybody knows that the beggars are not the choosers and they are losers everywhere.

K P Sharma Oli has shown his Janus, if not an ugly, face with regards to MCC. When he was in power, he openly advocated for parliamentary ratification of MCC without making any changes in the agreement when, in fact, his own party men have suggested introducing amendments. Now, in opposition, he is challenging the government for not speaking anything about MCC in the Common Minimum Program plus seeking to ratify through deception. Clearly, MCC is being turned into a political hot cake in Nepal. MCC—USD 500 million grant money spread over a five year period for construction of electricity transmission lines and road maintenance with further $130 million as a counterpart funding—is not a big deal for an economy with annual GDP of $34 billion (2020). But given the hue and cry over for and against MCC, it gives an impression that the whole sky is going to fall upon Nepali people.

True to its eleventh hour management style, the Ministry of Finance last week forwarded nearly a dozen queries seeking clarifications from the US, written in a clumsy, undiplomatic language. When the President’s Secretariat cannot differentiate between the words “congratulate” and “condolence”, there is no point in commenting on the clumsy English of our bureaucrats and politicians. The MCC has responded to those queries and written to the Ministry of Finance.

Resorting to a simple “stakeholder analysis” technique from management textbooks could have produced a carefully designed MCC PR strategy. Televised advertisements are not just a waste of money, time and efforts, it will leave negative impacts. There is no point in going to the “apathetic crowds” that neither have power nor interest in MCC. Instead, one needs to focus on the people with power and/or interest. That is what MCC proponents have failed to grasp. Even Ram Sharan Mahat recently sought to justify MCC by simply claiming the opponents were making “false criticisms”.

Going by the social media, it is the pro-royalists who are dead against MCC. These include ex-army officials, ex-bureaucrats, pro-Hindu supporters, former panchas, ultra-nationalists and socio-economic elites. If one distributes MCC opponents in a continuum, starting from the left with a dark colour gradation to the right with lightening of the shade, then definitely the MCC opponents mentioned above fall at the extreme left. Why are pro-royalists dead against Americans? Have not the Americans supported corrupt kings and autocratic heads everywhere? It will be amazing to find pro-monarchists dead against Americans here. One plausible reason could be they are not happy because they see Americans behind in the abolition of Nepal’s monarchy. In a way, there is a score to settle.

The radical communists will come next after the pro-royalists. They are dead against anything that is American because their ideology is rooted in communist ideology and they have unfailing support for China’s Belt and Road Initiative (BRI). They see MCC as the counterweight to BRI.

The third group of opponents consists of pro-India supporters. Their opposition to MCC is mild and they equate MCC with BRI. They are angry with MCC because they believe it may replace Indian influence. They see the MCC component on construction of transmission lines having a direct impact on India.

The MCC opponents have used all sorts of hoaxes like “designed to besiege China”, “capture Nepal’s uranium mines”, “turning Nepal into an American colony”, “proselytization”, “next Afghanistan” and so on. These hoaxes have politicized MCC to such an extent that it is near impossible for an average Nepali to detach from its debate. Such a debate will cease to exist even if Americans decided to pull out MCC from Nepal. The best way to deal with hoaxes is to ignore them. 

“The business of business is to do business, nothing more nothing less”, this is what Nobel Laureate, Prof Milton Friedman, the famous economist from Chicago University claimed about (social) responsibilities of business in the early 1970s.

Business is an economic instrument designed to create wealth and it serves best by maximizing wealth creation function. There is no need for business to get involved with extra or added activities like performing social responsibilities.  

However, over the last 50-60 years, the concept of CSR has evolved from corporate philanthropy (donations to charities) to risk management (managing negative impacts of business) to the creation of shared values (business directly addressing poverty, unemployment and other socio-economic and environmental concerns). One modern day argument in favour of CSR is why don’t businesses themselves undertake social responsibilities instead of paying taxes to the government that is corrupt, inefficient and partisan?

But I suppose the real test of CSR hinges on trying times like extreme political and humanitarian crisis situations currently unfolding in Afghanistan. Here are two examples from the past: During the Arab Spring in February 2011, in Egypt, at Tahrir Square in Cairo, when security forces resorted to firing the protesters gathered there, all the coffee shops located around the Square kept open their doors, allowing the protesters to run for security cover from flying bullets. The coffee shop owners saved the lives of thousands of protesters. The act cannot be termed as business philanthropy. Neither this comes under risk management definition. Instead business owners themselves were risking their own lives. The act is being performed from the sense of true altruism. 

Similarly, during the escalation of violence in the spring of 2018 in Ukraine, Kiev, a miner deployed around 9,000 of his mining staff members to give security during night time curfews. This is another extreme example of how business can actively take up non-business roles during crisis situations.

I suppose cases like these can never be explained under the concept of conventional CSR. The CSR textbook will never explain business to be directly associated with political activities. Though we have read news about big businesses often indulge and conspire in toppling governments for the sake of their vested business interests.   

Here are some more recent examples coming from the crisis situation in Afghanistan.    

First Airbnb, Walmart and others are lending their hand to the people of Afghanistan after the collapse of the US-backed government and Taliban takeover. Airbnb has committed to provide temporary housing to 20,000 Afghan refugees worldwide, free of cost, as long as they need. This news has come at a time when questions are raised about the business companies that operated in Afghanistan and which benefited from billions of dollars from the aid money injected into Afghanistan. 

Verizon, the US wireless network, is planning to waive charges for calls from its consumer and business customers to Afghanistan, up to September 6.

The real test of corporate social responsibility (CSR) hinges on trying times of extreme political and humanitarian crisis situations currently unfolding in Afghanistan.  

Similarly, discount retailer Walmart has committed to donate one million dollars to three non-profits supporting Afghan refugees entering the US, as well as to veterans and their families. These organizations are the Lutheran Immigration and Refugee Service, No One Left Behind and the Tragedy Assistance Program for Survivors. The toy maker Lego is also donating 100 million kroner ($16m) to support vulnerable children in Haiti and Afghanistan.

Based in Denmark, the Lego Foundation and parent company KIRKBI A/S had partnered up with, among others, two UN agencies—UNICEF and UNHCR—as well as Education Cannot Wait, a global fund, to transform the delivery of education during the crisis situation.

The last two examples are conventional forms of business philanthropy, directly giving donations for the cause. However, the acts of Airbnb and Verizon are different forms of CSR. The companies are directly using business activities for the cause of Afghan refugees. These examples tell us that, if needed, the business must proactively engage with the crisis situation through their line of business even though the opponents can easily charge them of “political activities” or partisan interest.

Undertaking these activities requires extreme courage on the part of business leaders. Often exigencies demand business to take up political roles. I suppose this is real CSR in action.

Corrupt country

There is a two way relationship between conflict and corruption. Conflict breeds corruption and corruption breeds conflict, making it extremely difficult to discern one from the other or the cause from the effect. It is no wonder that Afghanistan—a country with an alphabetical advantage of starting with “A”—comes at the bottom of the league of Corruption Perception Index published annually by an international anti-corruption agency called Transparency International.

In 2020, Afghanistan was listed, with a score of 19 out of 100, at 165th position among the list of 170 countries of the world. It is not just Afghanistan coming at the bottom of the index. Hosts of other countries like Somalia, South Sudan, Syria, Yemen and others, with a single defining character of “conflict and fragility,” are at the bottom of the index.

From the perspective of size, the Afghan army with 300,000 soldiers could not stand against Taliban numbering around 80,000 fighters. That was a humiliating defeat. More astounding is the fact that $83 billion investment, supply of hardware and military training by the US Army over 20 years, went like a drain in the sand. The difference is between an army that is poorly equipped but highly motivated, and the other with well-equipped but dependent on NATO support, poorly led and riddled with corruption.

Writing for Aljazeera, Marwan Bishara commented: “If you feel useless, just remember USA took four presidents, thousands of lives, trillions of dollars and 20 years to replace the Taliban with the Taliban.” In the aftermath of 9/11 and subsequent toppling of the Taliban government in Afghanistan in early 2000, in the annals of corruption studies, corruption during post-war became a hot topic for discussion and debate. It is reported that during its invasion to flush out Al-Qaida members hiding out in the mountains of Afghanistan, US had to resort to, not bombing but distributing suitcases full of dollars. Literally, the US corrupted the Taliban to topple them out of the government. This time they corrupted the Afghan army, just to be replaced by the Taliban.

Prof Jeffery Sach wrote in Project Syndicate that only two percent of the aid money given to Afghanistan has gone to the needy public. Clearly, the present catastrophe could have been avoided if the money had been utilized for education, drinking water, and health and improving sanitation. “Twenty years was a long time to give Afghan leaders to plant the seed of civil society, and instead they planted only the seeds of corruption and incompetence,”

Corrupting the Army

Anybody watching video news clippings of Taliban fighters having their time inside the room of the army general could immediately feel the lavishness of the room and smell a degree of corruption that must have gone behind that lavish decoration and refurbishing. The media reported that many of the 300,000 fighting force is made up of “ghost soldiers”, their salaries being pocketed by the commanders. The funds, ammunition and food deliveries supplied to the defense and interior ministries, were stolen and sold on the black market, eventually ending up in the Taliban’s hands. In a way, the US taxpayers were indirectly subsidizing the Taliban.

Corruption has highly demoralized the Afghan army without a sense of national duty and purpose. Aljazeera reported the ANDSF’s attrition rate was 5,000 per month while the recruitment rate was 300 to 500. The widespread desertion and corruption prevented US-trained militaries from emerging as capable forces. The political interference in recruitment and frequent transfer of commanders further eroded the morale of the army.

The state of corruption has gone to such a maddening level that in a national corruption perception survey organized by Afghanistan Integrity Watch in 2020, it is reported that “more than half of citizens believe that corruption levels to be lower in Taliban-controlled areas than in government-controlled areas.” “This is very worrying as it suggests that citizens generally feel that either the government is likely to be more corrupt than the Taliban, or at the very least is less able to control corruption than the Taliban,” said the report.

Sarah Chayes, who became famous after writing a book on corruption in Afghanistan entitled Thieves of State: Why Corruption Threatens Global Security, wrote about a disgruntled Afghan civilian fed up with paying bribes to the post-2001 security forces that he wished for the Taliban to come and rid him of this nuisance.

Lessons for Nepal

The opponents of MCC in Nepal may have found some cause to celebrate but things have to be viewed from a different perspective here. It is the corruption in the security forces that causes the state to lose its legitimacy to govern. During the height of Maoist conflict, wasn’t our situation similar to what is happening in Afghanistan? What was our fighting force vis-à-vis the rag-tag army of the Maoists? Or do we continue to rationalize that the then Royal Nepal Army was never deployed to defeat Maoists? Do we really need an army strength of over 100,000 now? Is not it time to appraise the integrity of our security forces (including police)?

The history of corruption has taught us one lesson: If it is the corruption that can prop up a regime then it is again the corruption that could lead to its swift downfall. Clearly, corruption is a double-edged sword. You can kill your enemy as well as get killed by yourself.

The important questions that loom around are: Why are the critics expressing so much displeasure with the order? What did the verdict say about the PM’s appointment? More importantly, did the court appoint Deuba to be the Prime Minister of Nepal?

The hue and cry over the order is primarily rooted into deeper psychology of Oli supporters who are or were, hitherto, assuming the court, at most, would restore parliament as it did in February. They were expecting that the restored parliament would decide the fate of the next prime minister—Oli or Deuba. The ten-point agreement between Oli and Nepal factions, released just a day before the court verdict, was clearly designed to keep intact the unity of CPN-UML and that of Oli government, if not to influence the court order.

The Oli supporters never expected court outcomes to go totally against their imagination. In a way, it shattered their dreams, expectations and imaginations. Hence the hue and cry. 

The verdict between the lines

At the surficial level the verdict does give an impression of absurdity. The court has no right to appoint a prime minister. Definitely, it is under the jurisdiction of parliament and the president. The critics are right in saying “if a prime minister can be appointed by the court why do we need expensive elections?” Therefore, there is a need to take a deeper dive into the verdict. What did the court say about the PM’s appointment? Did it really appoint Deuba the Prime Minister of Nepal?

The explanations on PM’s appointment are mentioned on para 119 (154 page) of the 167-page verdict document. The document has clearly stated that, as per Article 76 of the constitution, the right to appoint a Prime Minister rests with the President. It is definitely not under the jurisdiction of the court. However, the court has to intervene because the writ petitioners have raised questions over the legality and procedures related to the PM’s appointment. To drive its point home, the document illustrates a hypothetical case: Suppose a leader from a political party secured a majority in the elections. The President has a right as well as duty to appoint him/her as the Prime Minister under Article 76(1) of the constitution. Suppose, for some reasons, the President declines to appoint him/her, the person will invariably seek justice from the court. It is not the job of the court to issue an appointment letter. The job of the court is to interpret the legality of the procedures related to the appointment. The court has to correct any unconstitutional deviations in the process of appointment.

It may not be lawful to appoint a prime minister by the court but it is definitely an ethical thing to do.

On para 120(c) (157 pages) of the document, one can read basic tenets for issuing the order: “It is reasonable to have constitutional redress from that point where errors have been committed in the practice and adoption of the constitution” (writer’s translation).    

Obviously, the Bench found that the point where errors have been committed is at implementing Article 76(5) of the constitution. These errors included: (a) the President invalidating Deuba’s application for premiership endorsed by 149 MPs; (b) entertaining the application of and also recommendation to dissolve the House by a prime minister who is ineligible because he has not secured a vote of confidence in the House. More elaborations of points (a) and (b) can be found in the document. Literally speaking, the document has nowhere specifically named Deuba to be appointed as the Prime Minister of Nepal.  

At this stage, one can ask a question: What would have happened if a mandamus order was not issued favoring Deuba’s writ petition? Or the order was issued only to restore parliament that was dissolved? Obviously, this would have satisfied Oli supporters to some extent. But one will have to think the unthinkable, imagine the unimaginable. That act will be like giving enormous, discretionary power to a ceremonial president that we have conceived in the federal democratic republic Nepal. The duo—the President and the Prime Minister—hand-in-glove will be tearing and trampling the constitution to an indistinguishable figure. One can fairly imagine RIP to the constitution.

The job of the court is to interpret the legality of the procedures related to the appointment. The court has to correct any unconstitutional deviations in the process of appointment.

The Oli faction is now accusing that the court, through its order, has amended the constitution in a roundabout fashion. The faction is charging that the order has done away with the basic features of multiparty democracy. The grass-hopping MPs, with unrestricted freedom to vote for anyone inside the parliament, will now thrive inside the parliament. However, Oli supporters have failed to differentiate between Articles 76 (2) and 76 (5) of the constitution.

Right or wrong?

Personally speaking, it is pointless to debate over the court appointing the PM in a country where a Chief Justice can be appointed as the Chief Executive to hold second elections to the Constituent Assembly. For the sake of political expediency, anything can happen here. I am imagining more unimaginable things to happen in the days to come.

Let me conclude with para from a course in ethics: The word rights carry two meanings—having a right to do and a right thing to do. The first one confers legal rights or entitlements and the second one is the about morally correct things to do. It may not be lawful (legally correct) to appoint a prime minister by the court but it is definitely an ethical thing (morally correct) to do.

The Oli supporters are in a fighting mood. This is reflected by an unfolding of ugly drama inside Gandaki Province by pro-Oli MPs together with burning of effigy of Chief Justice and chanting of foul-mouthed slogans in the rallies organized by Oli supporters.

Within 30 days from the date of his appointment, PM Deuba has to secure the vote of confidence in parliament. The Court has also ordered to call parliament within seven days from the day of order or by Sunday, 18 July, 5.00 pm.

Legal loopholes

There is a technical hitch in securing the vote of confidence. The PM appointed under Article 76(5) has to seek vote of confidence under Article 76(6) which reads as follows:

“The Prime Minister appointed pursuant to clause 76(5) shall be required to secure the vote of confidence pursuant to clause 76(4).”

However, the Article 76(4) reads as follows:

“The Prime Minister appointed pursuant to clause 76(2) or 76(3) shall be required to secure the vote of confidence from the House of Representatives within thirty days after the date of such appointment.”

There is no mention of Clause 76(5) in the Article 76(4). The Clauses 76(2) and 76(3) are meant respectively for taking vote of confidence for a coalition government and the government by a largest party. Other than for numerical ordering of the clauses, it is not clear why the drafters of the Constitution mentioned Article 76(6) after mentioning Article 76(5). In Article 76(6), it is mentioned to go to Article 76(4) when, in fact, it could have been written straight away, within Article 76(5), to seek vote of confidence as per Article 76(4).  Article 76 (6) looks like a redundant clause. Anyone looking for a legal loophole can create a problem here. In defence, Prime Minister Sher Bahadur Deuba can also claim that he does not have to secure vote of confidence as per Article 76(4), for there is no mention of Article 76(5) within Article 76(4). Hope this will not happen.

Will Deuba make it?

For PM Deuba, the test of pudding lies in seeking the vote of confidence in the restored parliament. Sceptics are already speculating that, after a month, we are back to square one. In the absence of CPN-UML Madhav Nepal faction voting for Deuba, he is doomed to fail and we switch back to early elections. This is what departing PM Oli had proposed and we spent nearly two months of legal battle for nothing.

If PM Deuba secures the vote of confidence then he is safe remaining in power for 18 months of the five-year tenure of parliament. The Constitution bars filing no-confidence motion against the new government for two years. The moot question is: What happens if PM Deuba fails to secure the vote of confidence? I suppose this to be a redundant question. Here are the reasons:

First, this question is unimaginable. The Court has already ruled that every member of the parliament is free and independent to vote under Article 76(5). No party whips can be applied here. This single condition allows MPs, particularly, from Nepal faction and Thakur-Mahato faction of JSP to exercise their voting. Obviously, there is one caveat: possible horse trading, outright vote buying and who knows even kidnapping and holding the MPs to ransom? There is already news that a former minister belonging to Oli Camp, with 7-8 MPs under his fold, has approached PM Deuba for a ministerial berth in lieu of vote of confidence.

With Indian media now openly admitting that it was wrong to support the Oli government, the Mahatha Thakur-Rajendra Mahato faction of JSPN may also change their minds.

Second, the Nepal faction is morally obliged to vote for Deuba. It is reported in the media that Madhav Nepal has already assured Deuba of his voting. Going against Deuba will be like supporting the Oli government’s agenda to dissolve parliament in a roundabout fashion. Didn’t they sign to appoint Deuba as the PM and to save parliament from dissolution? What impact voting by the Nepal faction will have on CPN-UML unification? This is a matter of separate discussion and analysis.

Third, it is reasonable to give the benefit of doubt to PM Deuba. Already batteries of criticisms are levelled against him, ranging from his incomprehensive style of speaking to his past lacklustre performances to a satire on astrologist forecasting him to be PM for the seventh occasion. This is his fifth entry.

During the voting, even MPs from CPN-UML Oli faction may abstain from voting, instead of going against him. With Indian media now openly admitting that it was wrong to support the Oli government, who knows the Thakur-Mahato faction may change their minds. With the dangling of carrots of power, MPs are sure to salivate.I just mentioned a case above. And PM Deuba is a seasoned politician on this issue.

Fourth, the pandemic situation and looming third wave will favour Deuba to stay on power. Interestingly, the Court verdict is silent on commenting anything on pandemic situation, restoration of the parliament and holding of elections. It is only the Oli faction that is determined to go ahead for elections even at the time of pandemic situation. Earlier, I posited that availability or unavailability of vaccines, including the spread of coronavirus, will determine the course of Nepali politics. I still hold on to this prediction and the situation is clearly in favour of PM Deuba.

Finally, we come to the external factor. With the Chinese Ambassador making gestures that China is prepared “to collaborate with all the political parties in Nepal” and the American Ambassador becoming the first to extend his felicitation, the external wind is clearly blowing in favour of PM Deuba. If not for the works of the First Lady and the diplomat in-laws in Japan, Japanese Government is generously donating anti-Covid vaccines to Nepal. Hopefully, PM Modi will soon be calling Deuba to extend his congratulations, possibly with a program on vaccination. It is reported in the media that he is simply waiting for the results of the vote of confidence. If this is true, there is even a stronger ground for PM Deuba to secure vote of confidence.

There is no point expecting too much from PM Deuba. This is a care-taker government expecting not to last more than 18 months. If he just takes care of three viruses infecting the country—the (p)olitical virus (now I like to rename it as communist virus), coronavirus and corruption virus—I will say Deuba to be daringly successful.

In the last case on House dissolution, legal deliberations revolved around the constitutionality of the PM’s decision: Whether a PM with a clear majority can or cannot dissolve the House. Nearly after two months of court deliberations, the court overturned the Prime Minister’s decision and gave its verdict stating that as long as there exists an option to form another government in the House, the Prime Minister cannot dissolve it.

However, this time, the centrality of the debate revolved around the process leading to the dissolution of the House. Can a prime minister, who has neither resigned from his post nor secured the confidence vote in the House, recommend dissolving the House? To be specific, can a government formed under Article 76(2) which could not secure confidence voting under Article 76(4), which got transformed into a government under Article 76(3), decline to secure confidence voting, pave the way to form a government under Article 76(5)? And when the President invalidated the application calls to form a government under Article 76(5), can the PM recommend dissolving the House?     

At a surface level, it gives an impression that the centrality of the court battle revolved around the PM’s decision. However, in reality, the focus is very much on the constitutionality of power exercised by the President. Either by design or default, the President is “hand in glove” with the Prime Minister. The Bench has to answer this question: Does the President enjoy discretionary power to invalidate applications or not to appoint the Prime Minister under Article 76(5)?  

Besides this, the judges also have to speak about the pandemic situation in their verdict. Earlier, they spoke about “financial burden of elections to the general public”. Definitely, the pandemic situation is of greater concern than financial constraints in holding elections. What if the court endorses the PM’s decision and due to the pandemic situation, the elections cannot be held on schedule? We are basically into a political vacuum. In the absence of the elections, the tenure of the President and her men may be extended for a while but political fallouts may be serious and enduring.    

Listening to the defendant lawyers, it gives an impression that they are more occupied with saving the chair of the President than that of the Prime Minister. They are vociferously arguing that Article 76(5) gives discretionary power to the President and it cannot be questioned in the court of law. If we have conceived a ceremonial President in the Constitution then the verdict is going to leave a far-reaching impact on the constitutional interpretation of roles, responsibilities and power of the President. In a response to the show-cause notice issued by the Bench, even PM Oli has defended the acts of the President, saying the onus rests on him, not on the President. In a public meeting, he did not fail to criticize his opponents saying, “There is a kind of competition going around to defame the President”. Meanwhile, advisors of the President are publicly defending her position. There is even a subtle issue of threat: What if the President refuses to abide by court order?

However, the lawyers representing the plaintiffs have not failed to suggest a possible impeachment motion against the President. One can fairly imagine how we have fallen into a situation of disgrace.

What if the court endorses the PM’s decision and due to a pandemic situation the elections cannot be held on schedule? In the absence of the elections, the tenure of the President and her men may be extended for a while but political fallouts may be serious.    

Basically, the Madam President is squeezed from two ends. First, she endorsed the recommendation to dissolve the House from a PM, who had neither secured mandatory confidence voting in the House nor resigned from his position. He simply paved the way to form another government under Article 76(5). Second, she invalidated application calls for the appointment of the Prime Minister under Article 76(5), citing overlapping claims by 38 MPs. The invalidation of the applications triggered several questions. They range from “identification of the grounds for invalidation” to “the President discriminating the MPs on party affiliations” to “appropriate venue for verifying the signatures of the MPs”. It is not just the outcome of the President’s actions, that is, immediate and blank endorsement of the PM’s decisions to dissolve parliament and invalidation of applications. Questions were also raised over the way she took the decision, that is, decision taken in haste and, at the middle of the night, without consulting the Speaker and the major political parties in opposition.

Ever since being elected to the President, Bidya Devi Bhandari, the first female president of the federal democratic republic Nepal, has been dragged into controversy one after another—starting from her lavish style of living to becoming a mere “rubber stamp” of the PM and Oli faction of CPN-UML. Blaming the patriarchy is one thing, nurturing female leadership is totally another. Post republic, Nepal has seen a female President, a female Chief Justice, a female Speaker and even a female leadership in the private sector business. The question is how have we fared under their leadership? I leave the question to the readers.    

We are yet to observe and assess the full impact of the pandemic on our politics. We are into a double whammy of Covid infection and political virus. It is not sure whether coronavirus is infecting political virus or the political virus is infecting coronavirus. With a slight relaxation in lockdown situations, political demonstrations are already out in the streets. Who knows, in the days ahead, pandemic may provide a pretext to the government for quelling the dissent?    

Recently, we shamelessly observed how pandemic infested politics in Gandaki Province. In the province, as a counter to the opposition move to topple the provincial government through no-trust motion, the MPs of the party in power blocked the move by demanding PCR tests from each of them prior to parliamentary proceedings. When voting got due after PCR tests, an MP mysteriously disappeared, withholding voting process, only to be found later taking sanctuary in the Covid isolation ward of a private hospital.  

Court and pandemic

Currently, sitting judges in the Constitutional Bench are busy listening to arguments and counter-arguments on the constitutionality of the PM’s move to dissolve parliament and call for early polls. If this scribe is not correct, the judges will have the most difficult time to say something about the pandemic situation in their final verdict. Because in a writ petition filed by Sher Bahadur Deuba, one of the arguments given, inter alia, is that due to Covid-19 it is near impossible to hold the elections. The World Health Organization has listed Nepal as Covid-19 high risk country. In such a situation, holding elections means risking the health and lives of the people. This can be a crime against humanity. Therefore, to avoid this situation, the writ petitioners have pleaded the court to stop unconstitutional declaration of elections.  

Can the court refrain from making statements about the pandemic situation in their final verdict? If they cannot, what will they say?

Meanwhile, Prime Minister K P Sharma Oli has defended the case by dismissing Covid-19 argument as baseless. Citing budgetary provisions for vaccine procurement, claiming that the second wave of the virus is under control and by assuring that every Nepali will be vaccinated within six months, he claims that Covid-19 should and would not affect the scheduled elections. His lawyers have defended the PM, citing examples from a number of countries where elections have been held amid Covid-19 crisis. However, they have failed to note that there are at least 78 countries where national and subnational elections have been postponed due to Covid-19 (see the chart).

Given these arguments—for and against Covid-19 and elections—the judges definitely cannot remain quiet. In the earlier verdict on House reinstatement, the judges did spell “additional financial liability” to the general public of elections. If this is so, Covid-19 is an even bigger concern, impacting health and life risks besides additional financial liability.

Earlier, I argued that the political course in Nepal will be determined by the availability or unavailability of vaccines. The situation is even starker now with the judges having to say something about the pandemic situation. We have a hyperbole PM who grumbles over an interim order against his cabinet expansion, saying he has to deal with pandemic sans health minister but, at the same time, provides written response to the court that pandemic will not impact elections.

We have a PM who grumbles over an interim order against his cabinet expansion, saying he has to deal with pandemic sans health minister but provides written response to the court that pandemic will not impact the elections.

It should be noted here that the court, very recently, issued an order to the government for making available second jabs to senior citizens who have been kept waiting after their first jabs. Can the court refrain from making statements about the pandemic situation in their final verdict? If they cannot, what will they say?

Oli submitted a 19-page document divided into 18 sections and 43 sub-sections. 

The document details some ‘valid’ reasons for dissolving parliament and calling early elections. However, reading the whole document gives an impression of the PM directing his ire on three parties—namely non-cooperative Parliament and the Speaker, undisciplined enemies within his party and Nepali Congress President Sher Bahadur Deuba—challenging to topple him. In the document, PM Oli has also sought to justify his earlier first move to dissolve parliament.  

In Section 3 (12), he writes: “In a democratic system, political morality is of utmost importance. In the absence of party discipline and morality, the system will not perform.” In Section 11, petitioners are accused of not coming with “clean hands”. Further down, in Section 16, the document calls for maintaining and preserving integrity and dignity of the court. 

A vernacular newspaper commentator has referred to the document more like an order in itself than a response to the show cause notice. Careful reading of the document reveals a pack of lies, errors, pitfalls and fabrications. 

For the benefit of the readers, I will unbundle the pack of lies, going section by section, mentioned in the document. Since the original document is in Nepali, I seek apology, in case I missed some points or could not grasp the exact translation. 

Lies and errors 

The second to the last line in Section 3(11) reads: “In this way, the Prime Minister appointed as per Article 76(5) should seek the vote of confidence as per Article 100.” However, the exact reading in the Constitution is: “The Prime Minister appointed pursuant to clause 76 (5) shall be required to secure the vote of confidence pursuant to clause 76 (4).” There is no mention of Article 100. The Article 100 is made for provisions to secure vote of confidence and no-confidence motions. This can be assumed as a small typo error.

In the second line in Section 4(2), it is mentioned that the petitioners have used so-called signatures of some members of the political parties that supported PM Oli. And it is being done so to obstruct (referred in Nepali as bhaanjo halne) the appointment of PM Oli under Article 76(5). This is a gross falsification of the facts, including the use of derogatory Nepali phrase.   

In Section 7(1), the PM has expressed his “unwavering stand for the values like separation of power, rule of law, independence of judiciary” and has referred to “14 years of his imprisonment” and “spending half a century of political life.” Other than the expression of one’s vanity, these points have no relevance to the case. 

The 19-page document PM Oli has submitted to the Supreme Court in his response to show-cause notice is fraught with lies, errors and fabrications.

In Section 6 (3), PM Oli has sought to justify why he applied for the PM’s post under Article 76(5) when he is not even in a position to secure the vote of confidence under Article 76(3). This has to do with the abrupt change in position of Janata Samajbadi Party Nepal (JSPN). It will be interesting to know why JSPN which was not ready to support PM Oli under Article 76(3) is now ready to support under Article 76(5). He has assumed JSPN as a single, monolithic party. This is a total lie.  

There are two lies in Section 7(2). First, the PM has reasoned that restoration of the dissolved parliament in 1995 (during the prime ministership of Mana Mohan Adhikari) resulted in a decade-long Maoist war. Clearly, this is a roundabout way to put pressure on the court, warning in advance that the country may face a similar situation if parliament is restored. Anybody reading Nepal’s political history can conclude that it is not the dissolution of the House by Man Mohan Adhikari in 1995 that gave birth to the Maoist conflict. Rather it was the dissolution of the House by Prime Minister Girija Prasad Koirala in 1994 that planted the seeds of Maoist conflict. In the first parliamentary election in 1990, the then Maoist faction that went by the name of United People’s Front had nine MPs in parliament. After the dissolution of the House, the front boycotted midterm polls. This essentially kept them outside mainstream politics thereby helping to germinate Maoist conflict.

The other lie has to do with the outcomes of the second CA elections. According to PM Oli, the country was able to successfully draft the constitution only after the second CA elections. Implied meaning here is that the country’s political problem can be resolved with the holding of elections. However, it is at everybody’s knowledge that the drafting of the constitution was made possible by the occurrence of April earthquakes in 2015 and dangling of $4 billion humanitarian aid by the donors. If there is no one to buy this argument then, definitely, it is Oli’s own ambition to become the Prime Minister that sped up the drafting of the constitution. The faction of JSPN, now in the government, is in a better position to explain when and how the constitution was finalized.

He mentions that petitioners used signatures of some members of the political parties that supported PM Oli. This is a gross falsification of the facts.   

In Section 11 (3), in a roundabout manner, pointing at technicalities related to the submission of 149 signatures by the MPs, he has sought to prove the signatures to be unreliable and fake. This is a deceitful act. If there is tampering of signatures, he could have filed a criminal case.

Section 14 is related to Covid-19 and elections. This is where he makes a bald-faced lie. He has promised to make vaccines available to all adults, within six months, that is, prior to holding elections. He mentioned other countries holding elections successfully amid the coronavirus crisis, including one recently held election to the Upper House. He has also mentioned that the government is making necessary budgetary arrangements for vaccine procurement. However, everyone is clear about gross mismanagement in the vaccination program and procurement of vaccines.

Earlier in January, I wrote elsewhere whether we are poised for another round of Jana Andolan. This was based on identification of similar conditions that prevailed during Jana Andolan I (1990) and Jana Andolan II (2006/7). At the time of writing, Prime Minister K P Sharma Oli had dissolved parliament and his decision was challenged in the Supreme Court. In February, the Court overturned the PM’s decision and reinstated parliament. Due to pandemic situations and political manoeuvrings, Jana Andolan III got stalled for a while.

But given the situation in or of the country, the indispensability of Jana Andolan III is even starker now than ever before.  

PM Oli has torn and trampled the constitution to an indistinguishable shape; having a new and fresh political settlement is the only way out. This provides a raison d’être for another round of people’s movement.

With the second time dissolution of parliament in less than six months, the political drama is rapidly unfolding. Once again, the PM’s decision is challenged in the Court. Earlier, the court took two months to deliver its verdict. As time is freely available in Nepal and we are addicted to making decisions at the Eleventh Hour, no one is sure when the verdict gets delivered. By the way, the court has not yet issued a full version of the earlier verdict. What we have is a three-page summary. However, one good news is that, this time, the court is speeding up the process. By the first week of July, we will probably have the verdict.  

A couple of forces may delay or stall Jana Andolan III:  The pending court verdict and pandemic lockdowns. But it will be impossible for the local administration to lock down the city population for a prolonged period of time.

Definitely, the court is treading on a treacherous path extending between “justice delayed is justice denied” at one end and “justice hurried is justice buried” at the other. As the mid-term polls are already slated for November, with monsoon rain, followed by a long festive period, time is going to be a critical factor. The Covid monster is already out there hiding behind the bush.

Two outcomes

Irrespective of the speed of court deliberations, there are two possible outcomes—the court may or may not reinstate parliament. If the court reinstates parliament, the duo—President Bidya Bhandari and PM Oli—will have to go. They will have lost moral and legal authority to hold onto power. It will also be naïve to assume a safe landing. Whoever gets into power, elections have to be held within two years. No elections mean we are into another round of political chaos and confusion. This implies Jana Andolan III in making.

What happens if the court ratifies the PM’s decision? The alliance of five political parties—Nepali Congress, Maoist Center, Madhav Nepal faction of CPN-UML, Yadav-Bhattarai faction of JSPN and Rastriya Jana Morcha—are in opposition and have joined hands to launch battles on legal and political fronts. This time they are much more determined to restore parliament than ever before. Loss of legal battle means intensification of street battles. This again means Jana Andolan III in making.

The people’s movement is inevitable. It is only the question of when. There are already some tell-tale signs of Jana Andolan III. For example, Nepali Congress is taking the lead. The alliance has projected Sher Bahadur Deuba as the next PM. This signals unanimous leadership. Second, similar to holding joint meetings at Late Ganesh Man Singh’s residence, Chaksebari during Jana Andolan I, Deuba’s residence at Budhanilkantha has become opponents’ rendezvous. Third, reminiscence of Jana Andolan days, the alliance has issued a statement, warning state institutions to refrain from heeding unconstitutional orders from a caretaker PM. Fourth and more importantly, a rapid political polarization is taking place into Oli vs anti-Oli camps.

If the court reinstates parliament, Bidya Bhandari and K P Oli will have to go. They will have lost moral and legal authority to hold onto power.

One can see Oli camp being supported by pro-Hindu, pro-monarchical forces, some smaller radical communist parties and Thakur-Mahato faction of JSP, largely perceived to be at the behest of India.

A couple of forces may delay or stall Jana Andolan III.  Obviously, the first one is the pending court verdict. Delays in court verdict is not a solution, it will only backfire. Second one is pandemic lockdowns. It may prevent the demonstrators from coming out in the streets. But this can only be a short term measure. It will be impossible for the local administration to lock down the city population for a prolonged period of time. The hunger, joblessness, pandemic situation and political chicanery are building a massive frustration amongst the population which can erupt like a volcano any time.

Southern wind    

Third, the parties—both in opposition and in power—are waiting for a “green signal” from India. Either by design or default, India has been a decisive factor in Nepal’s political changes. Currently, politicians at both sides are busy wooing India. The citizenship ordinance, relaxation in the export of mines and boulders (to India), allocation of  a number of ministerial berths to Thakur-Mahato faction of JSPN are all designed to keep India happy. But India is in a trilemma: siding either with Oli or anti-Oli camps or deterring Chinese influence. So far, it is pretending that Nepal’s political developments are “internal matters”. This will soon turn into an insidious matter to handle. 

In the end, the availability of vaccines, that too, from India, will be the decisive factor for triggering Jana Andolan III. If India agrees to supply vaccines, PM Oli can breathe a sigh of relief. Mass movement may be contained for a while. Scheduled elections can go ahead. The opposition will have no options other than to participate in the elections. Delays in holding elections may lead to inevitability of Jana Andolan III. Nepal needs to vaccinate at least 20 million people. Currently, only two percent of the population is being served. The recent vaccine-begging spree is very much understandable. As a show of gesture, friendly countries like China, the US and some European countries may support the drive for securing vaccines. In the end, it will be the vaccines from India that will play a decisive role in controlling not just coronavirus but also (p)olitical virus that is badly infesting the country and the economy.

Once again, we are back to square one—India dependent.

Last time, it was amicably resolved as the presiding judge, charged of conflict of interest, volunteered to recuse, paving a way for a non-controversial judge. The issue surfaced when one of the presiding judges was found to have held the position of Attorney General prior to his appointment into the Supreme Court. Moreover, he was also a partner in a law firm owned by the then Attorney General. By constitutional arrangement, the Attorney General is the legal advisor to the government. Clearly, there is a situation of apparent conflict of interest.

Complicated case

This time, the conflict of interest got far more complicated and the debate was heated with high decibel noises. As the opposition lawyers pleading against PM’s decision to dissolve parliament pointed out that of five, two judges were related to the court verdict bifurcating Nepal Communist Party (NCP) on March 7, 2021. They argued that as the on-going case (of parliament dissolution) is a by-product of this party bifurcation verdict, there is an apparent case of conflict of interest.

Though the concerned judges argued that the two cases are in no way related; the matter got complicated when two other judges decided to recuse pleading for the sanctity of the court. In their written statements, they quoted Bangalore Principles for the judges: “propriety and appearance of propriety are essential to the performance of all of the activities of a judge; a judge shall avoid impropriety in all of the judge’s activities”.  They also argued that “it is not just for the judges to give verdicts, the justice must be seen to be done; in order to have a visible justice, it is not just necessary that outcome of the justice to be clear and impartial, even the process leading to that outcome must be equally transparent and impartial.” They claimed “public trust and confidence rest on these foundational stones” and “justice cannot be trustworthy when the judges are not trusted by the public.” Public decisions should not just be good, they also need to be looked good and seen good by the public. When one deals with conflict of interest issues, it can be real or apparent/perceived.

In the Constitutional Bench consisting of five judges, CJ is definitely in a dilemma. The two judges, who are charged for conflict of interest, are not opting out while other two, who have nothing to do with conflict of interest charges, are requesting for an exit on the ground of perceived conflict of interest. The debate got heated when the advocates representing the government charged that “we cannot simply “pick and choose” the judges. The Attorney General warned of possible disciplinary actions against those who brought conflict of interest charges. He also generalized the issue by stating that if conflict of interest is to be implemented in letter and spirit, there will be nobody in the judgement panel. In fact, a case has been filed seeking disqualification of eleven judges in the Supreme Court on the ground of various conflict of interest issues.

The irony is the two judges, who are charged for conflict of interest, are not opting out while other two, who have nothing to do with conflict of interest charges, are requesting for an exit on the ground of perceived conflict of interest.

With his usual diatribe against the opposition, our all-rounder PM Oli sprinkled fuel on fire when he commented that it is time for the judges to read the verdicts prepared by the lawyers.

In a hurried meeting organized with the Supreme Court Bar Association, CJ made a hindsight commitment to introduce seniority criteria while forming the Constitutional Bench. This sounds like, having played the game a couple of rounds, we are framing new rules of the game. This is not going to solve the problem. The CJ still has to deal with two non-volunteering and two other volunteering judges. Should he opt out or opt in those four judges if they come under seniority criteria? What will he do with judges who were members in the last Bench? Will there be repetition or no repetition? At the end, the CJ may be left with considerably narrow choices to make—this may lead to another conflict of interest or interesting conflict on its own.  

Constitutional crisis

At a time when the opposition is preparing to wage battle on both fronts—legal as well as political—against the PM’s decision to dissolve parliament and call for early polls in November, we are having another constitutional crisis—of not being able to give a shape to the Constitutional Bench. Even when the Bench is being formed, there is looming doubt that it will come up with a verdict that is acceptable to all. The situation has been created because when it comes to conflict of interest we tend to hold a relaxed attitude. Anybody remember a commissioner holding a job at the CIAA while she is on leave from university job? How about a pensioner drawing salaries from political appointed posh jobs? Anecdotally, somebody joked that the prefix “Nep ” in Nepal is derived from the word nepotism. Nepotism, cronyism and favoritism are some other variants of conflict of interest situations where overriding private interest, not necessarily that of public officials, but of someone else—family members, relatives, friends, patrons or clients take precedence in public decision making. Somebody revealed to me the chain of reactions—Lalita Niwas related to court verdict, the court verdict related to appointment in constitutional bodies etc—moving in a sequential give and take fashion. When we are at the height of “setting theory” in operation, it will be interesting to watch how we grapple with conflict of interest, in the days to come, not just in judiciary but throughout the state apparatus—percolating from the top to the bottom. Or we continue to hold the Nepalma estai ho attitude.

What the constitution says

Under the constitution, four types of governments can be formed. First, a majority government under Article 76(1). Any party securing a majority in the federal elections can form a government and there is no need for such a party to face the vote of confidence. The President appoints the leader of the parliamentary party as the Prime Minister. The Article 76.1 is straightforward—only a key point to be noted here is the appointment of the parliamentary leader as the prime minister. 

Second, if no party can secure a simple majority, Article 76(2) makes possible the formation of a coalition government. The President appoints any member of the parliament who can command a majority with the support of two or more parties as the Prime Minister. The Prime Minister has to face a vote of confidence within 30 days of the appointment. A key word to note here is appointment of any member of the parliament (MP) as the prime minister, not necessarily a leader of the parliamentary party as mentioned in Article 76(1) above.

Third, Article 76(3) makes provision for the formation of a largest party minority government. The President will appoint the leader of the parliamentary party as the Prime Minister when the coalition government cannot be formed or cannot secure the vote of confidence in parliament within 30 days. Again, the Prime Minister appointed under this Article has to face the vote of confidence in parliament within 30 days. It should be noted that this Article comes into operation only for the first time after the elections and only when a coalition government cannot be formed within 30 days.

Is the vote of confidence under Article 76(4) mandatory or can it be skipped? Should not a PM who skips the vote of confidence resign? Can the parliament be dissolved without even forming a government under Article 76(5)?

Finally, when the above three options are exhausted, Article 76(5) comes into operation. It makes provision for the formation of a government under a charismatic leader (term used by the author). Let me quote here this contentious Article 76(5):

In cases where the Prime Minister appointed pursuant to clause 76(3) fails to secure the vote of confidence pursuant to clause 76(4) and any member referred to in clause 76(2) presents a ground on which he or she is able to secure the vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.

The appointed charismatic prime minister has to face the vote of confidence within 30 days from the appointment. The key word to note in this Article is the appointment of “any member referred to in clause 76(2)”, that is, not necessarily a leader of the parliamentary party.  

In cases where the Prime Minister appointed under Article 76(5) fails to secure a vote of confidence in parliament or the Prime Minister cannot be appointed, the President shall, on the recommendation of the Prime Minister, dissolve parliament and fix a date of election within six months. This final provision is mentioned in Article 76(7).

Unlike in the past, one distinct feature of the present constitution is the emphasis on stability in government and ensuring full five-year tenure of parliament. Various types of governments are conceived so that, as long alternatives to forming governments are available, the parliament cannot be dissolved before its tenure. This principle was upheld by the Supreme Court when it reinstated the dissolved parliament in February.

The on-going debates on Article 76(5) revolve around two issues. For the sake of simplicity let us categorize them into two groups—process issues and content issues.

Process issues

There is controversy surrounding how to get into Article 76(5). Earlier court verdict speaks that as long as alternatives to forming the government are available parliament cannot be dissolved. The implied meaning here is that the Articles moving from 76(1) to 76(3) must be exhausted before getting into Article 76(5). The Oli government was first formed under Article 76(2) as a coalition between CPN-UML and the Maoist Center. After 18 months when two parties merged into the Nepal Communist Party (NCP), it was transformed into a majority government under Article 76(1). Again, with the annulment of party unification by the court in March, the government reverted to a coalition government between CPN-UML and Maoist Center under Article 76(2). After the PM’s decision to dissolve parliament in December last year, the Maoists did not support the government but neither did they formally withdraw their support. They demanded PM’s resignation on moral grounds. Finally, in May when PM Oli decided to seek a vote of confidence in parliament, the Maoists officially withdrew their support. When PM Oli failed to secure the vote of confidence in parliament, the President called political parties for the formation of a next coalition government under Article 76(2). As political parties failed to form a coalition government, the President, CPN-UML being the largest party, re-appointed PM Oli to head a minority government under Article 76(3). There is a big catch here. Article 76(3) is activated only when the government cannot be formed within 30 days of the declaration of the election results. Anybody reading this Article will come to realize that it comes into operation only once, that too, within 30 days after the declaration of election results, when a coalition government cannot be formed as per Article 76(2). Therefore, the President’s call for forming the government under Article 76(3) is unconstitutional in itself.  

On-going legal battle at the Supreme Court over parliament dissolution and mid-term polls rests squarely on the interpretation of Article 76(5) of the constitution. This deceptively simple one-liner clause is fraught with so many ambiguities and anomalies.

The government is expected to face the vote of confidence in the parliament within 30 days of appointment. However, after a week, instead of facing the vote of confidence, PM Oli recommended the President to form another government under Article 76(5) giving reason that there is no change in the political situation of the country and therefore he is not expected to garner the vote of confidence from parliament. The President issued a notice calling for the formation of the government by a charismatic leader under Article 76(5) giving a time limit of 21 hours. When the President received two applications, one from PM Oli claiming to have the support of 153 MPs from CPN-UML and JSPN and other from Nepali Congress President Sher Bahadur Deuba claiming to have 149 signatures of the individual MPs from Nepali Congress, the Maoist Centre and some members from JSPN and CPN-UML Nepal faction. As the names of 38 MPs (26 from CPN-UML and 12 from JSP) overlapped with two applications, the President nullified both applications and on the recommendation of the PM, dissolved parliament and called for elections in November.

Hosts of questions are now being raised over the process leading to the call for the formation of the government under Article 76(5), quashing of the applications by the President and finally, dissolution of parliament and call for early elections.

These questions are related to: (1) PM, having been appointed under Article 76(3), skipping vote of confidence under Article 76(4), and recommending to dissolve parliament and call for early elections; (2) no resignation from the PM who failed to face of vote of confidence; (3) the discretionary power of the President to quash applications, reasoning overlapping signatures, to form the government under Article 76(5); (4) president heeding the recommendations of the PM who neither faced vote of confidence nor resigned from this position. Is the vote of confidence under Article 76(4) a mandatory or can be skipped? Should not a PM, skipping the vote of confidence, have to resign from his/her position? Can the parliament be dissolved without even forming a government under Article 76(5)?

Reading between the contents

The contents of the Article 76(5) are now being minutely analysed by the legal and political pundits. The conditions referred for the operation of this Article can be dissected into three parts:

Condition 1

The Article comes into operation when “Prime Minister appointed pursuant to clause 76(3) fails to secure the vote of confidence pursuant to clause 76(4)”. The problem is created as the PM did not stand to face the vote of confidence. Can he be forced to face the vote of confidence in parliament? 

Condition 2

The Article comes into operation when the second condition is met, that is, after “any member referred to in clause 76(2) presents a ground on which he or she is able to secure the vote of confidence in the House of Representatives”. There are two sub-issues within this condition. First, what does “any member referred to in clause 76(2)” exactly mean? Does it mean to say as a member of the party or an individual member of the parliament? This distinction is important as the lawyers supporting Oli camp interpret this to mean political party members, who cannot skip party discipline and put their signatures for the appointment of a leader from the opposition camp. They fundamentally believe that ours is a democracy of multiple political parties, we are not into the bygone party-less panchayat system where individual MPs dominate the political scene. The lawyers representing Deuba camp view this to imply individual members of the parliament. They insist that the government under Article 76(5) can be formed by any individual member who can garner a majority in the parliament.

There is also controversy over the meaning of “presents a ground”. What does that exactly refer to? Does it mean to provide a discretionary power to the President or collection of individual signatures or a party recommendation? 

Condition 3

The third condition that is “the President shall appoint such member as the Prime Minister” is also shrouded in controversy. The Deuba camp says that the condition clearly states that the figurehead President enjoys no discretionary power to quash applications; she has to appoint the Prime Minister under Article 76(5).

So what is more important: content or the process? I will leave matters related to the content aspect of Article 76(5) to the legal and political pundits involved in drafting the constitution. However, as with the process, there is a saying, “a good process may lead to a bad outcome, but it is stupidity to expect a good outcome from a bad process.”

Let me end this write up with a quizzical note from a commentator in the social media: “We have different clauses 76(1), 76(2), 76(3) and 76(5) to form different types of governments but why the same person has to be appointed as the PM under different clauses again and again? What is so unique about his character?  

In Litigation 1.0 (the case against House dissolution of December 20, 2020), with nearly 300 lawyers lined up for the legal battle, it took more than two months for five presiding judges to deliver the verdict. During the deliberations, one of the judges had to walk out due to conflict of interest clause. Hopefully, there will be many conflict of interest as well as interesting conflicts to observe this time.  

Given the intensity of political as well as summer heat outside the court room, this time no one is sure when the verdict will be delivered. Time is the only resource abundantly available in Nepal. We are habituated to making decisions at the 11th hour.

Comparing two litigations

At first sight, two litigations are similar, with almost the same issue, and with same actors and their characters. The crisis is brought about by intra-party conflict within the ruling communist party. However, there are significant differences. In litigation 1.0, Oli enjoyed some degree of legitimacy and hence authority to dissolve parliament. President Bidhya Devi Bhandari was spared from controversy. The opponents were in disarray over whether to wage battle in the streets or in the court room, whether to prepare for elections or wait for the verdict. The country faced only a mild degree of coronavirus.

Oli’s absurdity is clearly visible: one moment he speaks not having enough strength to face vote of confidence and requests the president to look for another candidate, next moment, he presents himself as a potential candidate.

Litigation 2.0 is significantly different. Politics has been polarized into two camps—Oli vs anti-Oli. We are facing humanitarian crisis due to coronavirus second wave. This time opponents are resolute in restoring parliament and opposed to the idea of participating in elections under Oli government. This is the single reason why wishy-washy Deuba has been able to line up 146 lawmakers behind him at the Supreme Court. This time, Madame President is very much dragged into controversy. If the court verdict swings in favour of Deuba, we will see, not one, but two heads to be rolled out. The President will lose her moral authority to remain in that chair.

Let us have a look on possible strengths and weaknesses of disputing parties. Remember the strengths of PM Oli are the weaknesses of Deuba and vice versa.

Strengths and weaknesses of Oli

This time PM Oli will plead that he abided by the norms of the constitution to a level of exhaustion. He followed Article 76(2) and 76(3) and was forced to skip Articles 76(4) and 76(5) without any options, he will probably argue. He will also plead he was forced to remain as PM under Article 76(3) as the opponents failed to garner required majority. Given the situation of the devil and the deep blue sea, that is, having to call budget session within a short span of time and a need to face vote of confidence, there is no choice left other than to dissolve parliament and go for fresh elections, he can reason. He will also plead pointing constitutional weirdness where neither a majority nor a minority government is allowed to dissolve parliament and seek fresh mandate from the people. A minority government is forced to face vote of confidence in the parliament; the discretionary power of the President is being questioned in the court; and in a parliamentary multi-party democracy, political parties matters more than the members.

He will also raise the issue of opponents cheating the President with fake signatories. Probably, he will also claim cheating of the signatures has forced the President to invalidate his application to form a government under Article 76(5).

He may rant his commitment to democracy and human rights, fair elections, and upholding the rights of the opposition. But his detour on achievements like erection of Dharahara or bringing Melamchi waters or construction tunnel roads, development of digital apps, vaccine procurement etc are not going to pay off anything inside the court room.

The whole world is watching political and legal eccentricities happening inside Nepal.   

In the writ petition, the opponents have argued that PM Oli skipped constitutional provisions by neither resigning nor facing constitutionally mandated vote of confidence but recommending the President to search for another prime minister. His absurdity is clearly visible: one moment he speaks not having enough strength to face vote of confidence and requests the president to look for another candidate, next moment, he presents himself as a potential candidate, with a cool majority of 153 votes. Immoral acts often take place in the clout of the darkness. Any sensible mind can easily read the things cooking when decisions are made swiftly that too at the middle of the night when the country is in a lockdown situation. PM Oli’s distaste with the reinstated parliament is very visible from his acts of making it business-less and his penchant for ruling the country through ordinances.  

Crux of the matter

It is with the legal eagles how the debate will unfold inside the court room. However, the crux of the debate rests on deciding whether constitutional articles on the formation of governments—Article 76(1) through 76(5)—moves in a sequential order or can be hopped or skipped to get at the final Article 76(7) where parliament can be dissolved and mid-term polls called before the expiry of five years. Who is important—a party or an individual MP—in a parliamentary multiparty democracy? Why is a minority government forced to seek vote of confidence in parliament? Are not we switching back to partyless panchayat days when we are allowed to form government under Article 76(5)? Can the Court recommend appointment of the PM?

The crux of the debate rests on deciding whether constitutional articles on the formation of governments—Article 76(1) through 76(5)—moves in a sequential order or can be hopped or skipped to get at the final Article 76(7).

The world is watching

Whatever may be the outcome of Litigation 2.0, it is definitely going to be a threesome high noon drama. The three primary actors of the law, namely, lawmakers (legislature), law executioners (executive) and law interpreters (judiciary) have been simultaneously put to a public test. Remember, during Litigation 1.0 both parties to the dispute issued threats, saying final verdict will be issued by the people, not the court. This time the intensity is even more vicious as well as ferocious. And the whole world is watching political and legal eccentricities happening inside Nepal.          

At least, two largest political parties in parliament—CPN-UML (Oli faction) and Nepali Congress—and some other smaller parties are in a mood for early elections. There is a kind of national consensus on this issue. Probably, disagreements may rest on who is to supervise the elections? We do have a body called National Elections Commission but it is deeply entrenched in partisan interests. To a large extent, the current political problem can be ascribed to its past actions and inactions. Voting outcomes in Nepal are often influenced by the party in power. Therefore, everyone wishes to be in an electoral chair. Dr Baburam Bhattarai’s suggestion to have a national government, may be an answer but there is still the problem of belling the cat—deciding the leader to head the election government.

The next reason for holding early elections is that there is a simmering doubt that Nepal will ever have next elections. Earlier, when PM Oli dissolved parliament and called for elections, the opposition leaders doubted his real motive. Ram Chandra Paudel and Gagan Thapa from Nepali Congress were heard saying, “There is no point in participating in an election that is never going to happen”. For them the call for elections was nothing more than a pure hogwash. We must thank the Court, not just for restoring parliament but also for putting a stop on scheduled elections. Otherwise, holding elections amid looming humanitarian crisis would have turned into national stupidity, if not a mass suicide.

In a system where pork-barrel politics dominates the election outcomes, one can fairly question the proposition that elections will resolve our political problems.

Early elections again?

The political rumor market is rife with speculations that, after being reappointed, PM Oli is poised for another round of parliament dissolution and calling early elections. The important issue is not whether he will or will not hold elections. Or whether we should or should not have elections? The issue is: Will the elections (re)solve our problems? There are many instances in the world where, rather than easing, elections have complicated the situation. There are setbacks and backlashes on democracy due to wrong election timings and outcomes. Take the case of mid-term elections forced by then PM Girija Prasad Koirala in the mid-1990s. In fact, the current situation resembles that situation. The country was forced to go for elections due to intra-party fighting within governing Nepali Congress party in the mid-1990s. Twenty-five years down the road, we are in a similar situation. The only difference is that, this time, the intra-party fighting is inside Nepal Communist Party (NCP) now being shifted to CPN-UML. The mid-term elections resulted in a hung parliament situation and gave birth to Maoist Movement in the 1990s. What followed then is history. Take the other case of elections by King Gyanendra. Due to lack of public participation, and hence legitimacy, the elections turned out to be a farcical exercise.

Chaos of coalition

If any political party has assumed to secure majority in the elections then either it is betting on luck or badly fantasizing. Due to demographic composition and geographic spread of the voters and parliamentary seats together with our mixed electoral system, there is a greater chance of producing a hung parliament situation now than ever before. In the last elections, the communist parties were able to secure majority simply because they had a technical match fixing. We would have never landed into the current political morass if we had a law barring technical match fixing during election time.   

The hung parliament situation essentially demands a culture of coalition governments. Either we don’t have a coalition culture or have a perverse culture that is reduced to bhagbanda (sharing of the spoils) and a system of aalo-paalo (literal translation ‘eating turn-by-turn’). There is an interesting anecdote drawn from typical Nepali way of eating using your hand: At the time of eating, there is unison among five fingers, irrespective to their size, use and position. This habit of eating-time unity has bred and sustained a culture of corruption throughout the system.

Irrespective of their ideologies, the political parties in Nepal can be broadly classified into two—those which are for and against early elections. The first group consists of political parties that had an opportunity to dip their hands in the national coffers for so long; they do not see anything better than elections to have their investments and opportunity to turn ill-gotten wealth into white money. Elections play the role of money laundering business. The second group of political parties is wary because they don’t have money and power. In a system where pork-barrel politics dominate the election outcomes, one can fairly question the proposition that elections will (re)solve our political problems. This brings to fore the need to control electoral corruption.

Questionable quality

It is the quality of elections that is decisive in resolving political problems. We have a very poor quality of elections. There are extreme fluctuations in voting age population; total voters and voters’ turnout rates (refer to the chart)—making it impossible to predict election outcomes. Just take a raw data on voters’ count. In 2008 CA elections, we had 17.60 million registered voters; this got reduced to 12.15 million in 2013 CA elections. In 2017, the number increased to 15.44 million and now, it is estimated to be 16.34 million. There is no sensible explanation, other than outward migration due to foreign employment, on discrepancies in total number of voters. Interestingly, the chart depicts some degree of stability during multiparty days (1991-1999).

With the economy in tatters and looming humanitarian crisis posed by global pandemic, should we put our money in the procurement of vaccines and saving lives or should we spend our resources in holding elections?

One can fairly imagine the quality of our elections when ballot boxes are to be secured from donor countries. Nepal, probably, would be the only country in the world where people have to wait months and months before final election results are tallied and declared. There are hosts of financial, technical, manpower, security and even external constraints related to holding of elections.  Can we ever have our elections without managing open border points in the South? With the economy in tatters and looming humanitarian crisis posed by global pandemic situation should we put our money in the procurement of vaccines and saving lives or should we spend resources in holding elections?

Earlier, even when the Supreme Court reinstated the dissolved parliament citing it to be unconstitutional move, neither the PM resigned nor he felt a need to do so. Instead he was glued to the chair because he had added “responsibility to implement court ruling” and, moreover, there are no constitutional provisions to resign on moral grounds. Instead, on May 10, he shamelessly stood in the same parliament—which he had dissolved—pleading the members for their votes.              

Why the show?

If 28 MPs from Nepal-Khanal faction had not abstained from voting, Oli would have secured 121 votes and with additional 15 neutral votes from Thakur-Mahato camp of JSPN, the table would have turned in his favor. What is so difficult to understand is why PM Oli chose to go for voting when the outcome was so obvious? Was there some hidden agenda? Was he expecting to punish his enemies by exposing them in public? By calling special session, ahead of regular session on budget and annual programs, was he testing the votes of the opponents? With the opponents failing to come up with no-trust motion, was he heading to form a minority government under Article 76(3)? Or was he losing to win?  

During the voting session, Pushpa Kamal Dahal disclosed his hidden agenda—the reason behind non-withdrawal of their support to PM Oli. It was a deliberate move to pre-empt the PM switching from a coalition government under Article 76(2) to a minority government under Article 76 (3) and then on to a government by a charismatic leader under Article 76 (5) and finally, achieving his end-goal of dissolving parliament and calling for an early election under Article 76 (7).

With PM Oli’s opposition failing to garner 136 votes, clearly, the Maoists failed on their strategy. Nepali Congress President Sher Bahadur Deuba was wishy-washy from the very start. He got nothing to lose. His end-goal to have early elections matches with that of PM Oli. During three days of hectic political parleys, he was literally, holed into his residence at Buddanilkantha. Sounds like all roads lead to his residence.      

Paradox of opposition

It is one thing to have all leaders visiting to see him but a different job to cobble together mutually bickering JSP members and seeking support from ever wavering Madhav Kumar Nepal.

Having defeated PM Oli in confidence voting, Deuba still had to run a mile before claiming for the trophy. With 124 votes in his favor, he was still short of 12 votes. Either he had to woo 15 votes from Thakur-Mahato faction or seek direct/indirect support from Nepal-Khanal faction. The job was not simple and easy. There was a vertical split inside JSPN. When on Thursday Thakur barricaded himself in a resort with his MPs, literally, doors to negotiation were closed.

Meanwhile, Nepal-Khanal faction was equally wishy-washy over their mass resignation strategy. In an eleventh hour one-on-one negotiation with PM Oli, Nepal pulled out his mass resignation strategy, making it impossible for Deuba-Dahal camp to claim for a next coalition government.        

K P Oli is holding onto power, cashing on opponents’ divisiveness, playing on constitutional ambiguities and absurdities with the blessings from a puppet president, making joke out of the system.

It is sheer paradox to know that the opposite of “vote of confidence” is not “vote of no-confidence” in our constitution. The majority of the parliamentarians had spoken that they don’t trust PM Oli but they still remain to say “we distrust you”. With PM Oli re-appointed to head a minority government under Article 76(3), now there is a debate whether opponents can file no-trust motion against him. Is this a new government or the continuation of an old one? The Constitution prohibits filing no-trust motion for two years from the formation of the government.          

Lust for power

PM Oli did not resign when the court reinstated the dissolved parliament, he did not resign when his proposal for confidence got defeated. He is simply not resigning because the Constitution is silent on this. His government has been effectively reduced from a much boasted “two-thirds majority” to a “one-third minority”, he is still clinging onto power as if he is an invincible character.

As PM Oli holds onto power, cashing on opponents’ divisiveness; playing on constitutional ambiguities and absurdities with the blessings from a puppet president, he is making joke out of the system. At a time when the country is strangulated by the triangulation of coronavirus, political virus and corruption virus, he is playing the flute of his own.  In one moment, he gives his interview to the CNN saying the government is in total control of coronavirus, next moment, he writes in The Guardian, appealing for international help. He erroneously believes to have impressed his audience when they laugh at his speech. This charlatan and demagogue need to be stopped for one and only reason: With the reinstatement of the parliament that he dissolved earlier, he has turned into a wounded tiger—a far more dangerous than a normal one.