Whom should the President invite first to form the government? A number of political analysts have argued that as the CPN-Maoist is the single largest party in the Constituent Assembly, it should receive the first opportunity? Parliamentary practice in this respect may differ from country to country. Of course, in several countries, the practice has evolved that the biggest party in the parliament, even though short of a majority, gets the first chance. But, in Nepal’s present context and also in view of the past multiparty constitutional provisions, the biggest party-first formula is not necessarily the best and may even have demerits. In this case, the provisions contained in the now defunct 1990 Constitution appear more logical. If any party has won the minimum number of seats required to form the government on its own, there can be no alternative to inviting the parliamentary leader of the majority party to form the government. Practice cannot vary between countries in this case.
The problem arises when there is a hung parliament, like now. We have also to bear in mind that the political parties have formally switched over to majoritarian principle from the politics of consensus they had been following since the historic 12-point agreement between the then parliamentary parties and the CPN-M. Therefore, the only thing any CA member needs now to head a government is the ability to win the support of more than 50 per cent of the CA members for his or her candidature. It is not necessary that the single largest party can do that. What has emerged from the presidential and vice presidential elections is that the three-party alliance of the NC, the CPN-UML and the MJF is in a majority and the CPN-M in a minority in the CA. Because of this, the CPN-M has declared that it has given up its claim to forming the government on the strength of being the single largest party. Therefore, the President should invite the CA members generally to come forward with proof of majority if any of them aspires to become the Prime Minister.
This provision will provide everybody and every party with an opportunity to lay a claim to forming the government, and the single largest party is automatically included within this scheme. There is a practical side to this idea, too. If no member could prove his or her majority, the single largest party would have the natural right to form a minority government
— but it would be against parliamentary practice and a contradiction in terms if any party other than the largest formed a minority government. If all these options were exhausted and even then nobody could prove a majority in the parliament, the parliament would be dissolved
in ordinary times, leading to a fresh general election. But the CA is not a normal parliament — its main function is to write a new constitution and it has the added responsibility of a legislature. So, it cannot be dissolved, because the CA election cannot be held twice. In the absence of a political consensus or majority, a minority government becomes a logical necessity, otherwise a political and constitutional crisis arises.