President Ram Chandra Paudel has been holding intensive discussions for formation of an interim government after KP Sharma Oli resigned following the Gen Z protests.
Gen Z has proposed former chief justice Sushila Karki as the head of the interim government. Kathmandu Metropolitan City Mayor Balen Shah has also expressed support for Karki to lead the government.
President Paudel is seeking a constitutional path to form an interim government and has consulted with constitutional experts on the matter. Constitutional experts Purnaman Shakya, Bhimarjun Acharya, Bipin Adhikari, Chandra Kant Gyawali, and Lalit Basnet were invited to the President's residence Shital Niwas Thursday afternoon.
During the discussion with the President, the constitutional experts presented three different perspectives. According to senior advocate Gyawali, the President's main concern was how to form an interim government.
"The discussion was about how to find a solution in this extraordinary situation, where the coalition government has resigned and is now in a caretaker capacity. The question was whether an interim government could be formed from the existing Constitution or if there was another way out," Gyawali explained.
The constitutional experts suggested three possible solutions: one based on the Constitution, a second parliamentary one, and a third based on political consensus. All three options kept the Gen Z movement at the center of the discussion.
Gyawali said that a government could still be formed under Article 76 of the Constitution. The Nepali Congress, being the largest party in the House of Representatives, could form a government, but it is unlikely that the representatives of Gen Z would accept this.
"If the largest party is not recognized by Gen Z, then another sub-article within the same article could be used to appoint a member of the House of Representatives as prime minister (PM), and later include Gen Z representatives in the government," he stated.
And then ministers can be appointed under Article 78 which allows the President to appoint a non-parliamentary individual as a minister on the recommendation of the PM. The term of such a minister is limited to six months. This was presented as the first possible way to include Gen Z representatives as ministers.
The second path suggested was to convene a session of Parliament. The Constitution does not explicitly envision an interim government.
"Since there is no constitutional way to form an interim government, one option could be for all parties, including the PM, to identify and propose a name to Parliament that is also acceptable to the Gen Z protestors. This proposal could then be passed by Parliament," Gyawali said.
The second option also included dissolving Parliament and then forming an interim government, holding elections, amending the Constitution, and establishing a high-level commission for reconstruction and damage assessment.
Constitutional experts also said that if these options were not accepted, a third path could be pursued, which was supported by the majority of experts. This option involves the cooperation of both the Constitution and political parties, according to senior advocate Gyawali.
"To form an interim government, the current caretaker government, in line with the aspirations of the Gen Z movement, would recommend and agree with the President to form the interim government," he stated.
According to the constitutional experts, Article 66 of the constitution could be used for this purpose. This article outlines the President's duties and powers, stating that the President shall exercise powers and perform duties in accordance with the Constitution or federal law.
Sub-article (2) of the same Article states "In exercising the powers or duties under clause (1), the Pres-ident
shall perform all other functions to be performed by him or her on recommendation and with the consent of the Council of Ministers than those functions specifically provided to be performed on recommenda-tion of any body or official under this Constitution or Federal Law. Such reccommendation and consent shall be submitted through the Prime Minister."
Article 61 states that the President is the enforcer and protector of the Constitution.
Thus, the option provided was that the caretaker PM, with the consensus of the political parties, would recommend the formation of an interim government in line with Gen Z's proposal.
"This method of forming a government would recognize the mandate of the movement. Since the institution of the caretaker PM remains, he can provide the recommendation and consent. A declaration can then be drafted with consultation of political parties," said Gyawali. "The President can certify that proposal, and an interim government can be formed on that basis."
The argument was made that a government formed in this manner would have the political and constitutional right to dissolve Parliament. The interim government would then dissolve Parliament and hold a House of Representatives election within six months.
During the discussion of these three options, there was a consensus to appoint former chief justice Sushila Karki as the PM. She was considered suitable because of her international recognition, maturity, and experience as a former chief justice. She was the first female chief justice in Nepal's judicial history, and if this decision is implemented, she would also become the first female PM.
However, Article 132 of the Constitution prevents a former chief justice or a Supreme Court justice from being appointed to any government position unless otherwise specified in the Constitution.
Despite this, the constitutional experts argued that this article would not apply due to the current situation. Gyawali stated that the "doctrine of eclipse" would apply to this article.
"The PM also resigned based on an extraordinary situation. In that sense, it can be seen as an eclipse. Therefore, this solution can be considered a political and constitutional way to protect and legitimize the Constitution," he explained.
He acknowledged that this Article could be a basis for a legal case, but the Supreme Court would likely provide an interpretation that allows for a solution.
"This principle can be used because a crisis, both political and constitutional, has arisen, and elections are the way to go to the people," he said.
Political parties were also involved in this discussion. President Paudel consulted with former PM KP Sharma Oli and other top leaders, including NC President Sher Bahadur Deuba, CPN (Maoist Center) Chairman Pushpa Kamal Dahal, and CPN (Unified Socialist) Chairman Madhav Kumar Nepal. Dahal and Nepal went to the President's residence for the discussion.
Previously, when chief justice Khil Raj Regmi was made the head of the Council of Ministers, 25 articles of the Constitution were amended.
"At that time, I myself filed a writ petition stating that it was against the separation of powers. The Supreme Court issued a stay order preventing a sitting chief justice from becoming Prime Minister. He then retired from the judiciary, and the Constituent Assembly election was held accordingly," Gyawali recalled.
