By Nishan Khatiwada in The Kathmandu Post, April 15, 2023
The writer is a reporter covering national politics for The Kathmandu Post.
After sacking Dhaka Kumar Shrestha as a lawmaker and scrapping his ordinary membership, the Rastriya Swatantra Party (RSP), on Wednesday, decided to replace him with Bindabasini Kansakar in Parliament. However, the party’s action has now sparked a legal debate.
Shrestha, meanwhile, continues to claim that he is still an RSP lawmaker. Following the drastic step against him, Shrestha said the party has done him injustice by denying him a chance to establish his innocence and that he now plans to seek a legal remedy.
Legal and constitutional experts say the party appears to have decided in a rush and it cannot easily sack a lawmaker without following due legal process. Some legal experts say the party’s action was a populist move aimed at gaining political mileage.
“It seems that the party has taken the action in a hurry just to get some political mileage,” senior advocate Dinesh Tripathi said. “The party can remove Shrestha from his party position, but it is not easy to sack him as a lawmaker as the sacking should be in line with the Political Parties Act, the Constitution or the Prevention of Corruption Act.”
“A political party can send a notice [to Parliament Secretariat] that it has punished its lawmaker(s) as per the party’s statute. But it should not be done in such a hurry, and the legal process must be followed. Moreover, such actions must be based on legal provisions,” another senior advocate Yak Raj Bhandari said.
“A lawmaker does not lose his position in Parliament just because the political party concerned sacks him, because such a decision has to be endorsed by Parliament,” added Bhandari.
Legal experts have been saying Shrestha will not lose his lawmaker status if the party has sacked him without fulfilling the related conditions mentioned in the Political Parties Act, the Constitution and the Prevention of Corruption Act. They have been referring to the condition in section 28 and 32 of the Political Parties Act, 2017 and Article 89 of the Constitution
The Political Parties Act and Article 89 of the Constitution have some conditions such as violating the party’s whip, tendering resignation, joining another party, forming another party and so on. According to Section 32 of the Political Parties Act 2017, a party’s central committee, after receiving the details of the member defying the party’s whip per section 28, can scrap the membership of such member after giving them a chance of clarification.
The same section talks of when a member can be considered to have quit a political party: if the member tenders a written resignation, if the member takes the membership of another party or forms another party—none of which applies in Shrestha’s case.
The party has taken the process forward as per Section 34 of the Political Parties Act which states that the parliamentary party concerned should inform the Federal Parliament Secretariat if a lawmaker has quit the party or if the party expelled him/her.
On Thursday, the RSP formally informed the Parliament Secretariat about Shrestha’s ouster from the party.
Federal Parliament Secretariat spokesman Ekram Giri confirmed that the Parliament received the letter from the party on Thursday. “We will verify whether the process is in accordance with the Political Parties Act and other existing laws. We are studying the legal process. It is a serious matter,” Giri told the Post.
The RSP expelled its lawmaker Shrestha over a leaked audio in which a voice, allegedly Shrestha’s, demands Rs20 million from another person, the controversial hospital entrepreneur Durga Prasai, so that Shrestha can become health minister in the federal government. Prasai is the owner of the Birtamod-based B & C Medical College and Teaching Hospital.
Shrestha in the audio states that the Rastriya Swatantra Party leaders had initially demanded around Rs25 million in order for him to be considered for the post of health minister. It appears that Shrestha and Prasai had engaged in a phone conversation to discuss the same on January 15 and the recording was leaked on Sunday.
Constitutional expert Bipin Adhikari said a party can write to the Parliament Secretariat asking for its lawmaker’s removal, but the problem in Shrestha’s case is that the RSP did not seem keen on seeking legal alternatives.
According to him, even though the party made the decision without following due legal process, the Speaker cannot refuse to act on it since he lacks the executive and legal rights.
Adhikari added that Shrestha can go to the court to challenge the party’s decision. “The court can scrap the party’s decision if that was made without following due process.”
A complaint has already been registered at the Commission for Investigation of Abuse of Authority (CIAA) to investigate the matter. Section 25 (1) of the Prevention of Corruption Act 2002 states, “In case the investigating authority comes to know, through any information, source or a complaint lodged by any person, that any person has committed or is going to commit corruption, it shall initiate necessary investigations, inquiries and other actions in this regard.”
Similarly, sub-section (2) states that notwithstanding anything contained in Sub-Section (1), in case the investigating authority has received information from any source that any person has committed or is going to commit corruption, such authority may take immediate actions including raid, seizure of documents or goods and materials or arrest of person.
“The CIAA should immediately and proactively investigate the matter as its constitutional duty. Also, the CIAA may even file a case at the Special Court against the alleged corruption,” added Tripathi. “This is not only about one Dhaka Kumar Shrestha, but also others who are allegedly involved in the corruption case, people like Durga Prasai and the so-called core team [of RSP chairman Rabi Lamichhane]. There should be an in-depth investigation.”
According to a senior advocate Bhandari, it is for the investigating bodies such as CIAA to determine whether the audio is fake. “It can be a matter of investigation but to remove someone from the lawmaker position, the legal processes must be completed.”
https://kathmandupost.com/politics/2023/04/15/rsp-s-sacking-of-lawmaker-may-hit-legal-hurdle
