An office which is already vacant need not be vacated again (and that too, by insanely invoking an Article of the Constitution which has already been exhausted).
The elections to the House of Representatives (also to the Province Assemblies) have been held and the results are quite discernible. The winners-to-be (‘to-be’ – because the results are yet to be declared officially by the Election Commission) seem to be content with the results and are now in discussion with regard to the formation of a new government (Council of Ministers). At the same time, they are demanding that the incumbent Prime Minister should resign in order to pave way for the formation of a new government. This write-up is regarding what the Constitution (and the common-sense) has to say about PM’s resignation.
In the first place, I wish to drag the readers’ attention to Article 298(8) of the Constitution of Nepal. This provision is about the vacancy of the post of the Prime Minister appointed according to that Article (Article 298 – which deals with the formation of Council of Ministers in the transitional period, i.e. before the first General Elections are held after the adoption of the Constitution). The provision reads:-
The office of the Prime Minister appointed in accordance with this Article shall be vacant in any of the following circumstances:
(a) if he or she tenders resignation in writing to the President,
(b) if a vote of no-confidence is passed against him or her or a vote of confidence is not passed in accordance with Sub-article (14),
(c) if he or she ceases to be a member of the Legislature-Parliament,
(d) if he or she dies.
We can see that there are four ways how the PM’s office is vacated. What the winners-to-be of the election are demanding is that the PM should invoke Clause (a) of Article 298(8) and resign from his post thereby.
I (and anyone who reads the Constitution) believe that this argument or demand put forward by the winners-of-the-election appears to be non compos mentis. Rather, it is an unconstitutional demand. For this we have to eye Clause (c) of the Article 298(8), where it has been written that the PM’s Office will be vacant as and when he ceases to be a member of the Legislature-Parliament.
The Legislature-Parliament-in-question is that very Legislature-Parliament which has been dissolved under Article 296(1)(1)(para-2) back on October 15 (midnight). The PM’s office has been vacated at that very day/moment, i.e. Article298(8) has already been exhausted. Sher Bahadur Deuba’s office has already been vacated as per Article 298(8)(c). Hence, there is no need to invoke the same Article again – i.e. an office which is already vacant need not be vacated again (and that too, by insanely invoking the same Article of the Constitution).
So why is Deuba still acting as the PM even after October 15, 2017?
I believe this question has an answer in itself. The word ‘acting’ in the question answers it. PM Deuba is an ‘acting’ Prime Minister, a lame duck, who has to serve (rather, is constitutionally obligated to serve) as the PM until a new Council of Ministers is formed. Article 298(10) of the Constitution backs this statement.
If so, why are people demanding the PM’s Resignation?
In my personal opinion, there could be three reasons why people are demanding Deuba’s resignation.
- They are just too busy to give a look at the Constitution and haven’t read it,
- They are short of common sense, or perhaps not in the right side of their minds, or
- They are trying to create a propaganda against Deuba guy by accusing him of ‘not paving way for the formation of a new government’ or ‘he wants to stay in office forever’ or that ‘Deuba doesn’t respect the people’s mandate expressed in the polls’ – thereby trying to further deteriorate his public image.
- Supporters or sympathizers of Deuba who don’t want the propagandists to be successful in their mission, and want Deuba to ‘look good in front of people’ by resigning.
While we cannot really blame people if it is for the first and the second reasons that people are demanding Deuba’s resignation. I don’t even want to call them schmucks. But if it is the third reason, the people vociferating in this issue are just crazy, bad, wrong, egregious, shameful, awful and what not! The most shameful part is that the same bunch of people can be spotted caterwauling that the current government should not take major policy decisions and make appointments because it is a caretaker government. On the one hand, you call this government caretaker, and on the other hand you ask for that PM’s resignation who is already a caretaker? These egregious political-propagandists must be condemned, and stopped!
Finally, should Deuba still resign?
After I’ve said all this, I don’t really think that I should answer the question, as it is obvious that he should not! I would rather like to suggest the Right Honorable President of Nepal that even if Deuba comes to the Sheetal Niwas to submit his resignation, she should not accept that and ask Deuba to go back to Baluwatar or wherever he will come from. That way, the President would fulfill her duty to preserve and protect the Constitution, and rather by stopping the PM to violate a Constitutional Article! Even the sympathizers of Deuba should not pressurize him to resign, thereby violating the Constitution, or rather making fun of it.
So, can a new government be formed without the incumbent’s resignation?
Certainly, YES! This is because Deuba is not really an incumbent in the office of the Prime Minister of Nepal. Currently, he is not only a lame duck, but rather is merely a caretaker Prime Minister who cannot really take vital decisions (on this point I agree with the parties currently in opposition (Oh! Did I forget, some in the opposition are still in the government though, but anyway, you know what I mean) that Deuba as a caretaker PM shouldn’t be taking major policy decisions).
As soon as the Election Commission declares the results of the elections to the House of Representatives, the President can invoke Article 76(2) of the Constitution and appoint a new Prime Minister. (Again, I’d agree with the opposition or whomever that National Assembly need not be formed in order to form a new Council of Ministers). I congratulate him (the new PM to be appointed) in advance and wish him a successful tenure, but people should really stop giving a pressure to their throats by shouting that Deuba should resign as PM!
Kalika is pursuing BALLB from Nepal Law Campus.