President Yadav called upon the parties to pick a prime ministerial candidate as per the Article 38 (1) of interim constitution by 4 pm, Thursday.[break]
In a statement issued by the President´s Office, President Yadav has clarified that the move was taken in line with the spirit of Article 38 (1) while also considering the constitutional provision in the Article 36 (A) of the interim constitution. Article 36 (A) states that the president shall be the head of state, and in that capacity his main duty shall be to protect and abide by the constitution.
The president´s move comes after his repeated verbal appeal to the top leaders of various major parties, including UCPN (Maoist), Nepali Congress, CPN-UML and United Democratic Madhesi Front (UDMF), to form a national consensus government failed to yield any result.
President Yadav had reduced Prime Minister Bhattarai, who announced fresh CA election for November 22, to a caretaker after the CA was dissolved on May 27 as per the Supreme Court verdict. The president´s move comes at a time when the opposition parties have been demanding that the president set a deadline for the parties to form a national consensus government as per the Article 38 (1).
While Article 38 (1) states that the prime minister shall be selected through political consensus and the council of ministers shall be formed by the prime minister, article 38 (2) states that the prime minister shall be elected by a majority of members present in parliament, if parties fail to select the prime minister through consensus.
Consensus on PM candidate a tall order: Legal experts
Constitutional expert Bhimarjun Acharya said though the president´s step is constitutional, it would be a challenging task for the parties to forge consensus on the new prime ministerial candidate. He said that the president cannot prolong the process indefinitely if the parties fail to forge consensus.
This would pose a problem as to what he should do next. "In such a situation, the president will have to either pick an independent leader as head of a neutral election government or end the process without any result and let the present government continue," said Acharya.
Another constitutional expert Bipin Adhikari said, "The president has followed a very challenging path. It will be very good if this process produces a prime minister," said Adhikari. "But, it will turn out to a blessing in disguise for Baburam Bhattarai.” He said that if the leaders fail to come up with a consensus candidate for the post, the president will have a difficult time ahead.
Both Acharya and Adhikari said that the president can´t invoke Article 38 (2) which is about forming a majority government. They said that this article can´t be invoked in absence of parliament.
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