KATHMANDU, SEPTEMBER 7
The Supreme Court issued a writ of mandamus to Koshi Governor to appoint the new chief minister of the province under Article 168 (3) of the constitution within 48 hours.
This means, writ petitioner Hikmat Karki, the CPN-UML Parliamentary Party Leader in Koshi Province Assembly, will be appointed the new CM.
A grand bench of Justices Sapana Pradhan Malla, Kumar Chudal and Nahakul Subedi issued the writ of mandamus in response to a writ petition filed by Karki.
The bench observed that the trust vote obtained by incumbent Koshi Chief Minister Uddhav Thapa was unconstitutional as Assembly member Israil Mansuri who was chairing the Assembly meeting, cast his vote for Thapa.
The top court said the constitution envisaged formation of a minority government under Article 168 (3) if the government formed under Article 168 (2) failed to obtain vote of confidence in accordance with Article 168 (4) of the constitution.
The bench said Article 186 of the constitution barred the person chairing the Assembly meeting from casting his/her vote unless required to break a tie in the House. The meaning of the apex court verdict is that if the government formed under Article 168 (2) fails to obtain vote of confidence under Article 168 (4), a new government should be formed under Article 168 (3) and if that government too fails to obtain vote of confidence, then any member who commands majority in the Assembly should be appointed CM.
The bench stated there was no dispute that Mansuri, who had been chairing the meeting, had cast his vote during the time given to Assembly members to rethink their vote, and in order to cast his vote, he entrusted the responsibility of Chair to another Assembly member Gita Timilsina. Mansuri's vote in Thapa's favour gave him the magic number 47 that he needed to win in the 93 member PA.
The top court said Article 185, 186 and 188 were interconnected, cross-cutting and overarching, and that required harmonious and purposive interpretation.
The bench said the constitution did not allow the Chair of the Assembly to cast his/her vote unless required to break a tie in an uneasy situation. The court ruled that as per Rule 11 of Koshi Province Regulations, the whip issued by the party of the member chairing the Assembly meeting wouldn't apply to such a Chair. The bench also invoked the case law propounded in the case filed by Karki against Thapa earlier saying that the apex court ruled that the person chairing the Assembly meeting had no right to cast his/ her vote during trust vote. The court said that Article 186 barred not only the speaker and deputy speaker but also the person chairing the Assembly meeting from casting his/her vote. The bench observed that if the CM appointed under Article 168 (2) of the constitution failed to obtain vote of confidence in accordance with Article 168 (4), it was natural to form the government under Article 168 (3) of the constitution. Stating that the SC had reminded in its verdict delivered on August 28 about the need to form a new government under 168 (3) in case the government formed under Article 168 (2) failed to obtain vote of confidence, the bench ruled that Thapa's repeated attempt to seek vote of confidence under Article 168 (4) was not in consonance with the constitution.
When one alternative fails, it is proper to use a different alternative from the standpoint of constitutional development. If the CM, the bench observed, appointed under Article 168 (3) fails to obtain vote of confidence under Article 168(4), then there is constitutional provision of Article 168 (5) that allows any member of the Assembly who commands majority in the House to be appointed the new CM. The constitution accepts the probability of senior most member of the Assembly chairing the House meeting in case the election for speaker and deputy speaker has not been held or these two posts remain vacant.The bench also observed that Mansuri, named among five members to chair the House meeting, had also chaired the Business Advisory Committee meeting before the voting and he had obtained written authorisation from the deputy speaker to chair the House meeting and hence his situation cannot be termed an accidentally emerged one. The person chairing the Assembly meeting is deemed to have power akin to that of the speaker to run the House.
Earlier, the SC had issued a shortterm interim order against Koshi CM Thapa ordering him not to take any long-term and policy decisions till the adjudication of the case.
Thapa was appointed chief minister for the first time on July 6 with the support of then speaker Baburam Gautam. After the UML knocked the door of the Supreme Court on July 7, the SC annulled Thapa's appointment on July 27 terming his appointment against the law and jurisprudence.Thapa had become chief minister with the support of 47 PA members, including speaker Baburam Gautam.
One needs at least 47 members in the 93-member PA to form the government.
On August 1, Thapa was reappointed chief minister of Koshi.
UML is the largest party in Koshi Province with 40 members. The Nepali Congress has 29 members, CPN-Maoist Centre 13, Rastriya Prajatantra Party six, CPN (Unified Socialist) four and Janata Samajwadi Party-Nepal has one member.
