New PM after HoR members are sworn in or before?

Acharya asks how can one be PM without being lawmaker, Kharel argues appointment can be made directly

The Election Commission (EC) will announce the final results of House of Representatives (HoR) a few days after vote counting of the National Assembly election scheduled for February 7 finishes.

The EC has prepared to submit the final results of HoR to the President by February 15. The process of government formation starts after that.

The EC has shortened the time given to parties to select HoR members through proportional representation (PR) system, and to correct the list to ensure that the process for government formation starts sooner.

The EC in its guidelines about election for HoR through PR system had allotted seven days to parties to send the closed list and three days for correcting the list. It has amended the guidelines to shorten the time-frame to five and two days respectively.

President Bidhya Devi Bhandari will start the process of government formation after receiving the final results of HoR. The next government in this way can be formed in the third week of February.

But there is confusion as to whether the President can directly appoint prime minister (PM) or the HoR members will have to be sworn in before that.

Some legal experts opine that President can appoint PM once CPN-UML and CPN (Maoist Center), which together have a big majority, write to the President recommending a name after announcement of final results.

Some legal experts, on the other hand, argue that PM can be appointed only when the first meeting of the HoR passes working procedure for its operation.

Article 76 of the constitution has three provisions for formation of the new government.

The first is appointing the parliamentary party leader of the party that has majority in HoR. This provision cannot be used now as no single party has majority.

The second is appointing the person who can command majority in the HoR with the support of two or more parties.

The third is appointing the parliamentary party leader of the single largest party if the PM cannot be appointed through the first two provisions, or the one appointed through the second provision fails to prove majority on the floor within 30 days of being appointed the PM.

UML and Maoist Center together have majority in the HoR.

The President can use the second provision to form the next government.

Some say the first HoR meeting must be convened for that. Constitutional expert Bhimarjun Acharya said the President must call the HoR meeting first. He argued that the President can invite the leaders to show majority for PM after the HoR members are sworn in and pass the working procedure for selection of PM.

“President will invite for PM quoting Article 76(2) once the elected HoR members are sworn in as per that working procedure. The President will then appoint the person who commands majority with support of two or more parties as the PM. This will be constitutional,” Acharya said. “There are some who argue that PM must be appointed directly but the elected persons do not become HoR member without taking oath of office. How can one be elected PM without becoming a lawmaker?”

But UML leader Agni Kharel, who is also a senior advocate, begs to differ. He argued that while the Interim Constitution required convening of the House meeting first, PM can be appointed directly now.

He claimed that the President can invite for PM as per Article 76(2) once the EC submits the final results of HoR to the President after election of National Assembly. “PM will be selected as per Article 76(2) of the constitution. President can directly invite for PM after receiving the HoR results. The provision for appointing the person who can command majority in the HoR with the support of two or more parties has been kept precisely for that purpose. There is no provision in the constitution that says the elected HoR members must first be sworn in,” Kharel pointed.



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