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Nepal Communist Party legal dispute may invite more political chaos

ISSUE-4-Nepal-28-01-2021

The Nepal Communist Party may have split in two, politically, but going by the Election Commission’s Sunday decision—or indecision for that matter, the party is still one—technically and legally.

The commission on Sunday said that since both factions—one led by Prime Minister KP Sharma Oli and the other by Pushpa Kamal Dahal and Madhav Kumar Nepal—failed to follow the party statute and the provisions of the Political Parties Act-2017, it only recognises the Nepal Communist Party which was formed in May 2018 with Oli and Dahal as its two chairmen.

The Nepal Communist Party was born out of a merger between Oli’s CPN-UML and Dahal’s CPN (Maoist Centre).

But since December 22, there have been two parties, politically—Nepal Communist Party (Oli faction) and Nepal Communist Party (Dahal-Nepal faction).

Both factions had applied to the commission claiming to legitimately represent the party.

Now with the commission refusing to recognise either faction as the Nepal Communist Party, legal experts and observers say there could be technical as well as political implications. Dispute resolution is a technical part, according to them, which could affect the elections and if the elections are not held on the declared dates, there could be a political vacuum in the country.

“Unless the legitimacy dispute of the Nepal Communist Party is resolved, it is difficult to have a conducive environment for elections,” said Bhojraj Pokhrel, a former chief election commissioner who oversaw the 2008 Constituent Assembly elections, a mammoth exercise that elected 575 members to draft a new constitution.

After dissolving the House of Representatives on December 20, the Oli government has called snap polls in two phases—April 30 and May 10.

There are now 94 days left to hold the first phase of the polls, if the court clears the way.

The House dissolution move has been challenged in the Supreme Court, which is hearing as many as 13 writ petitions.

With over 300 lawyers arguing against and for the dissolution, it is unclear when the verdict will come.

If the court decides to restore the House, as demanded by various political parties, the politics will return to the parliamentary process. But if the court endorses Oli’s House dissolution move, there is no option for the country but to go to the polls.

But with the commission’s failure to resolve the legitimacy dispute of the Nepal Communist Party, observers say, elections, if they happen, may not be held on time, which could create a political chaos.

The commission has said it could not give legitimacy to either faction of the Nepal Communist Party as per Section 51 of the Political Parties Act-2017.

As per Section 51, a party needs to notify the commission if its name, statute, regulations, stamp, flag and officer-bearers have been changed or amended within 30 days of such changes. Only if the commission is satisfied with the submitted details does it recognise and update the changes that it has been notified of.

But the commission has said that as it cannot recognise the claims of both the factions, and as per Clause 25 (6) of the Regulations on Political Parties-2017, it recognises the “existing details” of the party.

Since both factions do not appear to be keen to remain together under the roof of Nepal Communist Party and want it as their own, experts say there could be two options—go to the court or initiate the process under Section 44 of the Political Parties Act-2017—for dispute resolution.

As per Section 44 (1), a faction that seeks to claim ownership of the original party, stamp, flag and symbol needs to approach the commission with the details to lay its claim along with the signatures of 40 percent of the party’s Central Committee members within 30 days after a dispute arises.

Once such claims are made by the faction, the commission, as per Section 44(2), seeks response from another faction giving it a 15-day deadline. But if the other faction fails to meet the deadline, it can seek another 10 days.

Once that period elapses, the commission can call both factions for reconciliation. Failure to reach an agreement will mean the commission can grant legitimacy to the applicant as per Section 44(6).

However, it’s already 33 days, beyond the commission’s deadline of 30 days, since the dispute arose in the Nepal Communist Party. The party split politically on December 22, two days after Oli dissolved the House, when both factions held separate Central Committee meetings of their own. And neither faction has initiated the process for legitimacy as per Section 44.

Some current and former commission officials say if the commission indeed intends to resolve the dispute, it can summon both the factions. According to them, one way to resolve the dispute could be the commission taking upon the responsibility and calling on both the factions to initiate Section 44 or urge them to find a common ground amicably, or else a legal split is unlikely.

“Both the factions can file applications, saying the dispute surfaced a few days ago instead of more than 30 days ago,” said an official on condition of anonymity because he was not allowed to speak to the media. “They have approached the commission with an application saying since they were in a bid to resolve the dispute through yet another provision [Section 51], they could not make their claims as per Section 44.”

Some have described the Election Commission’s indecision on the Nepal Communist Party also as its inefficiency.

Radhesyam Adhikari, a National Assembly member from the Nepali Congress who is also an advocate, blamed a competent authority like the Election Commission for running away from its responsibility.

“The Election Commission failed to perform its duty by showing reluctance to settle the legitimacy dispute of the Nepal Communist Party,” Adhikari told the Post. “It is not that it has exhausted all options at its disposal.”

Some believe the commission could be buying time because the House dissolution move is yet to be settled by the Supreme Court.

Meanwhile, ever since the two factions have parted ways, they are baying for each other’s blood.

While the Dahal-Nepal faction has taken to the streets, demanding that the House be restored, the Oli faction appears to be already on a campaign trail, claiming that the House cannot be revived and that elections will take place on the declared dates at any cost.

But unless the Election Commission resolves the legitimacy dispute of the Nepal Communist Party, elections will be up in the air.

“This is strange that the commission, on the one hand, is preparing for elections,” said Adhikari. “And on the other, it is refusing to settle the dispute. Resolving the Nepal Commiunist Party’s legitimacy issue is sine qua non of planned polls.”

The problem has arisen also because neither of the factions has approached the Election Commission with an intent to break the party.

With the commission taking the decision not to update details submitted by both factions, the way forward for both factions with regard to legitimacy remains uncertain.

“Supposing elections are going to be held, the real problem will arise when it comes to nomination of candidates,” said Shambhu Thapa, a senior advocate who is pleading on behalf of the petitioners who have challenged the House dissolution move. “Both sides may nominate the candidates and whose nomination the Election Commision is going to accept?”

But before that, the commission needs to provide election symbols to the parties or candidates. Without completing this process, the commission cannot print ballot papers. In order to distribute election symbols, the legitimacy dispute of the Nepal Communist Party must end.

“It now appears that this dispute cannot be settled without court’s intervention, as the commission appears reluctant to take a firm decision,” said Adhikari. “If the case goes to the court, it will be a time-consuming process.”

This then brings to fore the question whether elections are possible on the announced date. In an ideal situation, the Election Commission requires at least four months to complete the preparations.

In the last local elections, the commission had around three months for preparations.

“All indications point to the fact that elections won’t be held on the dates announced by the government,” said Adhikari.

On Monday, Home Minister Ram Bahadur Thapa hinted that the elections scheduled could be postponed if there is a delay in the verdict from the court.

While addressing a press meet organised by the Press Organisation in Kalikot, Thapa said the fate of scheduled polls depends on the court’s verdict.

Observers say even as the hearing is going on at the court, people are concerned about the elections, as they have been declared and the commission has started preparations, and failure to resolve the Nepal Communist Party decision could create a political chaos.

According to Pokhrel, the former chief election commissioner, an election is a political game which cannot commence until political parties, the players, are ready.

“As the commission has failed to provide a solution to the Nepal Communist Party legitimacy claims, it looks likely the dispute can continue for long,” said Pokhrel. “With no solution in immediate sight, the country could head towards a confrontation.”