Narayan Upadhyay

In its latest verdict, the Supreme Court (SC) has dealt a big jolt to the prospect of the beleaguered ruling Nepal Communist Party to remain in power as a united political force. Since the ruling has turned the present political equation upside down, the leaders of the feuding factions are found in a huddle to negotiate with the unanticipated scenario that has emerged after the verdict. Responding to a three-year-old petition, the SC on Sunday scrapped the registration of the ruling party, the Nepal Communist Party, formed under Prime Minister Oli and chair Pushpa Kamal Dahal Prachand and awarded the party's name, NCP, to another veteran communist leader and petitioner, Rishi Kattel. He had registered his party with a similar name before the Oli-Prachanda duo registered their unified party at the Election Commission, following the merger of the then CPN-UML and CPN- Maoist Centre in May 2018.

Shock
Unless one seeks a thorough judicial review, the verdict will have deeper ramifications on national politics. The two rival blocs have been gunning for displaying their majority to determine their authenticity as the genuine NCP, but the top court’s controversial ruling shocked them, especially Prachanda-Nepal faction of NCP beyond imagination. The SC, according to some legal experts, has breached its jurisdiction by issuing a verdict on the matter for which the petitioner had not sought the court's ruling. According to sources, Kattel, in his petition, had not made any request to the top court to quash the merger of the two communist parties. He had wanted the apex court to return the denomination of NCP to him because he had registered it at the EC before Oli and Prachand had done so.
About two weeks ago, the apex court had issued a major verdict by overturning the dissolution of the Lower House of Federal Parliament, delivering a sucker punch to the Oli government that had opted to go for fresh elections after terminating the House of Representatives (HoR) without allowing it to complete its full five-year term. Prime Minister Oli had dissolved the House on December 20, 2020, after party differences saw him coming under tremendous pressure from his rivals to quit. The nation's politics had deeply polarised following the HoR dissolution.
Some legal eagles are of the view that the latest ruling has contradicted the earlier ruling of the SC's constitutional bench, which, in its landmark ruling, had revived the dissolved House stating that a Prime Minister appointed on the basis of Article 76 (1) of the constitution could not dissolve it. However, the latest ruling which had revived the two unified parties has rendered the Oli government formed under Article 76 (2). As per Article 76 (1), a PM must be appointed on the strength of a party that has won a majority in the House while Article 76 (2) supposes that a prime minister can be appointed with the support of parliamentarians of two or more than two parties.
When Oli was elected PM in the parliament three years ago, the two communist parties had not united. Once the two parties merged to become the NCP, Oli became the prime minister based on Article 76 (1). Some constitution experts say the emerging situation requires PM Oli to prove his majority in the House. If the Prime Minister is forced to prove his majority, he requires the support of either the Nepali Congress or the Janata Samajbadi Party to remain in his post for his party - the UML - does not have the required numerical strength. Meanwhile, the court verdict that rendered the ruling NCP illegitimate has revived the two unified parties to their former self.
The court denied recognising the unification of the two parties. As per the court's ruling, the two parties now require a due party registration process at the Election Commission, should the leaders of the two former communist parties want to merge their parties. The ruling came at an exceedingly odd moment- just a few hours before the dissolved HoR was about to sit for its first meeting after the apex court had restored it. The two rival groups were all set to demonstrate their majority in the House to substantiate their claim on the party.
The unexpected ruling has thrown cold water on the Prachanda-Nepal group’s move to unseat PM Oli through a no-confidence motion. Now, the Prachand-Nepal faction has been exacted to pursue legal advice to negotiate with the new situation. If such a situation would not have arisen, the Prachand-Nepal group might have censured PM Oli in the House. The court decision, it can be said, has given some breather for the Oli faction. The unanticipated verdict has cast a shadow on the viability of many parliamentarians of two feuding factions.
The NCP has leaders from the UML and the Maoists. And they are compelled to return to their old parties. Following the court decision, the parties having their representation in the HoR are necessitated to count their numerical strength. As per the report, the erstwhile UML has 121 lawmakers, the Maoist Centre 53 and the Nepali Congress 61. The Janata Samajwadi Party has 31 members. According to the existing provision, a party requires backing from a minimum of 138 HoR members to form a government.

Heightened complexity
Despite the ongoing speculations over reverberations being felt in the nation's politics, the court ruling is less likely to alter the resolute stance displayed by the rival factions in their battle for gaining an upper-hand in the ruling dispensation and the party. Dev Gurung, NCP chief whip and a stalwart of the Prachanda-Nepal faction, said that the SC ruling would not complicate their side's conviction to wrest the space from the Oli faction. As the two feuding sides have reached a point of no return, they are less likely to go for unification any time soon. They would rather side with other parties in the parliament to buttress their stand in the House and the government.
The evolving political scenario has placed the Nepali Congress in a better position. With its present numerical strength, the NC can lend a decisive push in helping form the government by siding with any feuding group. Congress’s positive overtures would end many uncertainties caused by the self-destructive feud in the ruling party and the controversial court verdict that has only heightened complexity and disorder in the nation’s political sphere.

(Upadhyay is Deputy Executive Editor of The Rising Nepal. nara.upadhyay@gmail.com)