Lawyers sharply divided over provisions on govt formation

Kathmandu, July 17

Legal experts are sharply divided over the constitutional provision relating to the formation of a new government in the transitional period.

Contrary to suggestions offered by legal experts to leaders of Nepali Congress and CPN-Maoist Centre yesterday, some other lawyers, who were invited by Prime Minister KP Sharma Oli today for consultations, said the transitional provision is unclear about formation of a new government although the provision of voting out the incumbent PM exists.

After being reduced to a minority government following withdrawal of CPN-MC’s support, the PM has been pleading that there is no clear constitutional provision regarding formation of a new government.

During consultations by NC and CPN-MC yesterday, constitutional experts had said that there was no obstacle in forming a new government under Article 298. A new PM can be elected under the same provision under which Oli was elected the Prime Minister, they had said.

PM Oli today held consultations with other legal experts on the issue. They supported the PM’s idea and said Article 298 does not envisage formation of a second government in the transitional period.

Almost all the 15 lawyers with whom PM Oli held consultations opined that there were some obstacles in the process of forming a new government and those obstacles should be cleared before beginning the process of forming a new government, according to former Vice President of Nepal Bar Association Tika Ram Bhattarai, who was present in the consultations.

PM Oli, according to Bhattarai, said he would move ahead as per the constitutional provisions.

After the consultations held in his residence in Baluwatar, PM Oli seemed convinced that the new government cannot be formed without clearing constitutional hurdles, according to advocate Govinda Sharma Bandi.

“The constitutional provision does not make formation of a new government any easier at a time when the PM is not ready to hand over power willingly.

Since Article 298 does not envisage dissolution of transitional government until there is a new government after fresh elections for the Parliament, a political solution should be sought rather than a constitutional one,” said Bandi.

Some other lawyers had advised the PM that the obstacles could be cleared only after amending Article 298 to include the provision of forming a new government or by clearing the constitutional obstacles.

“The incumbent Cabinet should recommend to the President if the obstacle is to be cleared in accordance with Article 305,” Bandi said.

Advocate Chandra Kanta Gyawali, during today’s consultations, was of the opinion that the PM could dissolve the Parliament as per Article 76 (7) of the constitution.

“In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months,” states the provision.