KATHMANDU, March 19: With the election process nearing its formal conclusion, attention has now shifted to a crucial question: when will the new government be formed—and what comes first, the oath of lawmakers or the appointment of the prime minister?
The Election Commission (EC) is preparing to submit the report of the House of Representatives (HoR) election to President Ram Chandra Paudel on Thursday.
Barring any unforeseen circumstances, the EC will distribute certificates to the proportional representation lawmakers this morning.
Immediately after distributing the certificates, a team from the EC will reach Sheetal Niwas to hand over the election report to the President. With the submission of the report, the HoR election process will formally conclude, and the country will enter the phase of forming a new government.
There is no dispute or ambiguity that a new government will be formed under the leadership of the Rastriya Swatantra Party (RSP), which has secured close to a two-thirds majority in the HoR through both direct and proportional representation systems.
But when will the government be formed? After the Secretariat meeting held on Sunday, RSP Spokesperson Manish Jha had said that it could take around 10 days to form the new government.
As the RSP is currently engaged in internal discussions and training newly elected lawmakers, it is still unclear how it will proceed with the government formation process.
After the promulgation of the constitution by the Constituent Assembly, in the first HoR election held in 2017, the alliance of CPN-UML and the then CPN (Maoist Centre) had secured a similar number of seats as the RSP has now.
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At that time, although the provincial and HoR elections were held in November, the EC conducted the National Assembly election in February and submitted the report to the President on February 14.
On February 15, then UML Chair KP Sharma Oli, accompanied by then Maoist Centre Chair Pushpa Kamal Dahal, reached Sheetal Niwas to stake a claim for the prime ministership under Article 76(2) of the Constitution of Nepal.
Leaders of the Nepali Congress had accused then Prime Minister Sher Bahadur Deuba of not being given time by President Bidya Devi Bhandari to submit his resignation, as she appointed Oli as prime minister first.
Oli, who had been elected as a HoR member from Jhapa-5, was appointed prime minister without taking the oath as a member of the HoR. The Constitution requires the prime minister to be a member of the HoR. However, the issue of appointing him without administering the oath was not seriously raised.
Now, the RSP alone is close to a two-thirds majority. If it follows the same path adopted by UML and the Maoist Centre in 2018, it could stake a claim for the prime ministership as early as Thursday evening or Friday.
In that case, the President could appoint the parliamentary party leader of the RSP as Prime Minister. Article 76(1) of the Constitution provides that the leader of the parliamentary party of the political party commanding a majority in the House of Representatives shall be appointed prime minister.
The EC is set to submit the report on Thursday as per Section 62 of the House of Representatives Member Election Act, 2017. The Act requires the EC to submit the final report within seven days of the announcement of the election results. The EC had already published the list of proportional representation lawmakers on Monday.
Some argue that the President can appoint the prime minister based on the report submitted by the EC. However, legal and constitutional experts say that after receiving the report, the President must initiate the process of forming a new government by inviting political parties.
Experts also argue that, unlike in 2018, the President should not appoint a prime minister before lawmakers take the oath, and the RSP should not stake a claim before that.
A constitutional expert said the President should not be guided by the precedent of 2018. “Mistakes made in the past must be corrected. How can the President know that it is time to form a government without inviting the parties? Therefore, the President must call for government formation,” the expert said.
The process of forming a new government must begin as per Article 76 of the Constitution. According to Article 76(1), the President appoints the leader as prime minister, who is the leader of the parliamentary party that commands a majority in the HoR.
“The President shall appoint a leader as new Prime Minister who is the leader of the parliamentary party that commands a majority in the House of Representatives, and the Council of Ministers shall be formed under his or her chairpersonship,” the Constitution states.
The RSP, which has secured a majority on its own, must first select its parliamentary party leader. In addition, the member to be appointed as prime minister must first take the oath of office and secrecy as a member of the HoR.
Experts argue that even if a political party selects its parliamentary leader before the oath is administered, the President cannot appoint that person as prime minister before the oath of office and secrecy is taken.
On the recommendation of the Parliament Secretariat, the President will administer the oath to the senior-most member of the House, who will then administer the oath to other members.
Only after that will the process of forming a new government move forward, or the President may advise the Prime Minister to recommend convening a session of Parliament through the Council of Ministers. The President can summon a session of Parliament on the recommendation of the Council of Ministers.
Article 93(1) of the Constitution requires the President to summon a session of the Federal Parliament within one month of the final election results being declared.
It states: “The President shall summon a session of the Federal Parliament within thirty days from the date of declaration of the final results of the election to the House of Representatives. Thereafter, the President shall, from time to time, summon sessions of either or both Houses in accordance with this Constitution.”
A prime minister appointed under Article 76(1)—that is, from a party with a majority in the House—is not constitutionally required to seek a vote of confidence within one month under Article 76(4).
Such a prime minister cannot be removed constitutionally unless he or she resigns or their party splits. No motion of no-confidence can be registered against such a prime minister for two years.
Although there is little doubt that the leader of the RSP parliamentary party, which has won 182 seats through both direct and proportional systems, will become prime minister, the question of whether the oath of lawmakers should come first or the appointment of the prime minister has once again surfaced.
