Senior leader of Rastriya Swatantra Party (RSP) Balen Shah is yet to be picked as the party's parliamentary leader and appointed prime minister.
RSP had entered the March 5 House of Representatives (HoR) election declaring Shah as the prime ministerial candidate. By winning a total of 182 seats through both the direct and proportional systems, RSP has emerged as the largest party. Now, according to the prior understanding with Shah, RSP must appoint him as the parliamentary party leader. Following the announcement of the election results, a meeting of the parliamentarians must be held to elect the party leader.
Once he becomes the parliamentary party leader, President Ram Chandra Paudel will appoint Shah as prime minister. He will become prime minister in accordance with Article 76(1) of the Constitution. This sub-clause states that " The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.”
After being appointed prime minister, Shah does not need to take a vote of confidence in the HoR because he will become prime minister in the capacity of the leader of a majority-holding party. To achieve a majority in the 275-strong HoR, 138 seats must be won, but RSP alone has won 182 seats in the election.
Article 76 of the Constitution contains provisions regarding the formation of the Council of Ministers. This article does not make it mandatory for the leader of a majority party to seek a vote of confidence. However, the prime minister may seek a vote of confidence at any time if s/he so wish.
Constitutional expert Bipin Adhikari states that after the president selects the leader of the majority party as prime minister, there is no need to take a vote of confidence. "After receiving the election results, the president must ask the majority party for the name of the party leader," Adhikari said. "Once the name of the leader is received, the president must appoint the prime minister. Our Constitution does not mandate that the leader of a majority party must take a vote of confidence."
According to the constitutional provisions for the formation of the Council of Ministers, a vote of confidence must be taken within 30 days if a government is formed by two or more parties.
Similarly, if the largest party forms a minority government, a vote of confidence must also be taken within 30 days. The Constitution of Nepal also provides that if a government of parties cannot be formed, even a single member of parliament can become prime minister. Such a prime minister must also seek a vote of confidence in parliament within 30 days.
Since Shah will become prime minister as the leader of a majority party, there is no mandatory provision for him to take a vote of confidence.
Article 100 of the Constitution deals with the circumstances under which a prime minister must take a vote of confidence and the provisions for bringing a motion of no-confidence. If Shah is elected prime minister, a no-confidence motion cannot be brought against him for at least two years. The Constitution provides that one-fourth of the parliamentarians can bring a no-confidence motion against the prime minister. However, bringing a no-confidence motion against any prime minister is prohibited for two years after their election.
But in the event that the prime minister's party RSP splits, Shah would have to take a vote of confidence within 30 days. Similarly, if any party participating in the government withdraws its support, the prime minister's party must take a vote of confidence.
It is not clear whether RSP will take other parties along in the government this time. If the parties collectively bring a no-confidence motion against the prime minister after two years and it fails, another no-confidence motion cannot be brought for another year.
However, the Constitution is not clear on how a prime minister's departure occurs if a majority party changes its parliamentary party leader. In such a situation, the question may arise whether the President can directly pick the newly appointed party leader as prime minister according to Article 76 (1).
There is a procedural ambiguity regarding whether notice of the prime minister's position being vacant goes from the Parliament to the president, or if a new prime minister is appointed after receiving notice that the party leader has changed. Constitutional expert Bipin Adhikari says that if such a situation arises, the president must look at "who has become the party leader and whether the party has a majority."
"Let's not imagine such a situation. After declaring one person as the prime ministerial candidate before the election, another person to become prime minister would be an act of deceiving the people," Adhikari said. "But if a difficult situation arises, the president will have to see who the party leader is."
