KATHMANDU, JULY 27

The Supreme Court has nullified the appointment of Uddhav Thapa as chief minister of Koshi province terming his appointment against the law and jurisprudence.

Thapa who represents the Nepali Congress in Koshi Province Assembly had become the chief minister on July 6 with the support of 47 PA members, including Speaker Baburam Gautam whose support was decisive in making him the CM. One needs at least 47 members in the 93-member PA to form the government.

The apex court delivered its verdict in the case filed by CPN-UML lawmaker of Koshi Province Assembly Hikmat Karki against Thapa.

The full bench of Justices Ishwar Prasad Khatiwada, Ananda Mohan Bhattarai and Til Prasad Shrestha termed Gautam's support to Thapa as not conforming with jurisprudence, constitutional morality, parliamentary practice, and the constitution. The bench observed that the speaker of the Assembly should play neutral role like a referee or an umpire. The bench observed that as the constitution envisaged neutral role for the speaker, Article 186 of the constitution stipulated that the speaker or the person who chairs the Assembly should not cast his/her vote unless required to break the tie in the House.

The bench said the speaker should maintain equidistance and equal relations with all parties and members of the Assembly. It said if the speaker was allowed to support claim for the formation of the government, by extension he/she might seek to vote in favour or against a no trust motion in the Assembly. The bench observed that it could not find any example in countries that followed parliamentary norms where the speaker had supported a lawmaker's claim to form the government. The speaker cannot, on any ground, justify his/her role supporting somebody's claim to form the government against parliamentary norms.

The court observed that although the constitutional provision did not clearly state that the speaker cannot support somebody to form the government, the speaker cannot take part in any process except in limited circumstance as provisioned in Article 186 and 182 (7) of the constitution.

The bench said that the speaker cannot claim both the role of the speaker and a member of the PA. The speaker should limit his/her role to just that of the speaker.

The SC also said there was no hurdle to form a new government under Article 168 (2) of the constitution. Earlier, Karki had become the CM, butlost the vote of confidence in the Assembly after a new coalition government was formed at the centre. The court observed that as long as an alternative was available under Article 168 (2) it would be appropriate to explore such alternatives. Stating that Article 168 (3) stipulated that if a government cannot be formed under Article 168 (2), then the parliamentary party leader of the largest political party in the PA shall form the government and since in this case an erroneous process was started in the course of the formation of the new government under Article 168, the process of forming a new government should start from the point where the error occurred. The court ruled that if a new government cannot be formed under Article 168(2) or if such a government cannot obtain vote of confidence under Article 168 (3), then only the PP leader of the largest party can form the government. The apex court ordered Koshi province governor to appoint a person commanding majority under Article 168 (2) as the new CM by August 2.

Thapa had the support of 47 lawmakers from the ruling coalition - 29 from NC, 13 from CPN-Maoist Centre including Koshi Province Assembly Speaker Baburam Gautam, four from CPN (Unified Socialist) and one from Janata Samajwadi Party-Nepal.

Hikmat Karki moved the SC against Thapa's appointment as CM saying the speaker's support to Thapa was against the spirit of the constitution as he had a neutral role in the House.

Karki also argued that the speaker who renounced his party affiliation on January 12 after being elected to the post of speaker could not support any claim other than to break tie in the PA. Karki had staked claim to form the new government on July 6. Karki had also demanded a mandamus order saying he should be allowed to form the new government as the PP leader of the largest party under Article 168 (3) of the constitution. The petitioner had also named Koshi province Governor Parshuram Khapung, and Assembly Speaker Baburam Gautam as defendants. A single bench of Justice Sapana Malla Pradhan Malla had, on July 12, issued an interim order to CM Thapa asking him not to take any decision that could have a long-term impact until the case was decided.

Former chief attorney of Madhes province Dipendra Jha who pleaded on behalf of Thapa said the court verdict was a balanced one as it allowed the assembly member with majority support to seek to form the government under Article 168 (2) as long as an alternative was available. He said Thapa again had the chance to form the government.

A version of this article appears in the print on July 28, 2023, of The Himalayan Times.