by Nishan Khatiwada in The Kathmandu Post, July 30, 2023
The ouster of the Uddhav Thapa-led government in Koshi has sparked a debate on the status of the caretaker provincial administration.
Province head Parshuram Khapung has not assigned a caretaker government, creating confusion even among government agencies.
For instance, after the Supreme Court’s verdict on Thursday, a team of Nepal Army had reached CPN-UML leader Hikmat Karki’s residence to provide security, apparently believing that he was the caretaker chief minister. But the personnel left Karki’s residence on Saturday morning.
Confusion persists as the court verdict termed the process of appointment of Nepali Congress leader Thapa as the chief minister unconstitutional, raising questions over whether his administration can be entrusted to carry out daily administrative work.
Thapa is still mentioned as the chief minister on the website of the Office of the Chief Minister and Council of Ministers. His name is also on the nameplate at the chief minister’s office.
Experts, however, are divided on the government’s caretaker status.
According to constitutional expert Bipin Adhikari, there is no caretaker government in Koshi. “The Karki government was already voted out. Thapa took the oath of office as chief minister and inducted three ministers as well. But the Supreme Court termed the process unconstitutional. So there is no caretaker government,” Adhikari told the Post.
“Rather than leaving it to the provincial head’s discretion, the Supreme Court has fixed a deadline [to form a majority government in accordance with Article 168(2)], explaining that Article 168(3) will come into play [if a government is not formed as per 168 (2)],” said Adhikari.
The Supreme Court, on Thursday, unseated Thapa from the post of chief minister and directed both the head of the province and Speaker of the provincial assembly to appoint a chief minister of a coalition government within seven days. Province Head Khapung, accordingly, asked the political parties to stake their claim on government leadership by Tuesday, as per Article 168(2) of the constitution.
The Supreme Court, however, did not reinstate UML parliamentary party leader Karki as the chief minister, which was one of the demands of Karki, who had moved the court on the issue. “If the chief minister appointed as per Article 168 (2) fails to get a vote of confidence, a new chief minister will be appointed as per Article 168 (3). Therefore, it is not necessary to issue an order to appoint the plaintiff as the chief minister,” said one point in the verdict.
Some constitutional experts, meanwhile, say that the Karki-led government should be assigned the caretaker status.
Constitutional expert Chandra Kanta Gyawali said the court termed the government of Uddhav Thapa unconstitutional, reasoning that the Speaker cannot give his support to form the new government. Thereon, the government formation process was taken to a point where the province head had to call for new government formation after Hikmat Karki failed the floor test. “Therefore, Karki’s coalition government should be recognised as the caretaker.”
Khapung had appointed Thapa as Karki’s successor after the ruling alliance produced the signatures of 47 lawmakers including Baburam Gautam, the Speaker of the assembly, on July 6, to prove a majority in the assembly as per Article 168(2) of the constitution.
A day later, the opposition UML moved the court saying that the head of the assembly can’t take sides and support a political party to form a government.
As asked by the petitioner, the Supreme Court said Gautam cannot play any part in government formation.
“Baburam Gautam resigned from his party on January 12 after becoming Speaker,” said the court verdict. “The Speaker has a role of a referee or an umpire, which is why Article 186 says one chairing the provincial assembly cannot cast a vote. The Speaker can cast a decisive vote only when there is a tie.”
“In parliamentary practice, there is no instance of government formation through Speaker’s support,” the verdict stated.
The court also ruled that as long as there is a possibility of government formation as per Article 168(2) of the constitution, that article should be invoked. Moreover, the process should proceed constitutionally from the point where the constitution was misinterpreted or a mistake was made.
As the Supreme Court mentions the term ‘from the point’, Karki’s government should be the caretaker, said senior advocate Tikaram Bhattarai.
Bhattarai said there should never be a situation of a government-less province. “Thus the Supreme Court used the language ‘from the point’ in its verdict.”
The parliamentary strength of the political parties makes the government formation process in Koshi tricky. Without any change in the existing alliances, a coalition government cannot be formed in the province. The ruling alliance of the Congress, the Maoist Centre, the Unified Socialist and the Janata Samajbadi has 46 lawmakers combined.
The opposition alliance of the UML and the Rastriya Prajatantra Party, with 40 and six lawmakers respectively, has an equal strength. A total of 47 lawmakers are required for a majority in the 93-member assembly and the parties have been exploring options to muster a majority on the assembly floor.https://kathmandupost.com/politics/2023/07/30/is-there-a-caretaker-government-in-koshi-province
