A debate has now begun over the legitimacy of the special general convention of the Nepali Congress and the election of its leadership. If there is no agreement between the establishment and the convention supporters, there is a possibility that this dispute will reach the courts through the Election Commission. How is the Election Commission prepared in such a situation? What do legal professionals say?
What you should know
The second special general convention of the Nepali Congress has been ongoing for three days at Bhrikuti Mandap in Kathmandu. The special general convention is set to start the office bearer election process from Wednesday. Meanwhile, talks between the establishment and the general convention supporters took place on Tuesday, but no agreement could be reached. However, efforts to reach an agreement between the two sides are continuing.
A debate has now begun over the legality of holding elections through a special general convention. This dispute is likely to reach the court through the Election Commission. What is the Election Commission's preparation if the legality of the special general convention and leadership selection of the Congress is disputed? What do legal professionals say?
On what basis and provisions did the special general convention of the Congress begin? Is it legally valid or not?
The process began on 29 Asoj after 54 percent of the Congress's general convention representatives collected signatures demanding a special general convention and submitted them to the acting president Purna Bahadur Khadka. The petition stated that if the regular general convention should not be held by mid-Mansir, then a special general convention should be held.
This petition was registered after a dispute arose over when the regular general convention should be held in the Central Working Committee meeting that began on 28 Asoj. This demand was made as per the provisions in the Congress statute for a special general convention in cases where the regular general convention cannot be held immediately. The constitution of the Nepali Congress, which was made in 2017 and amended at various times, states that a special general convention can be held in three situations.
According to Article 17 (2) of the constitution, the Central Working Committee can call a special general convention if it feels the need. According to the same article, 40 percent of the Central General Convention delegates, excluding the Central Working Committee, can make a written request to the Center for a special general convention, specifying special reasons.
Article 17 (2) states that ‘If the Central Working Committee deems it necessary or if 40 percent of the members of the Central General Convention make a written request to the Center to call a meeting of the Central General Convention, specifying special reasons, a special central general convention must be called within three months of the request.’
The Nepali Congress constitution also provides for the possibility of calling a special general convention to elect a new leadership if the party president resigns from his post or if the post becomes vacant for any reason. The first special general convention of the Nepali Congress was held in Biratnagar on 23-24 May 1957 (2014 BS). The party had held a general convention for special programs/decisions. In that general convention, party leaders discussed and decided on organizational and political issues.
Even though the provision for holding a special general convention is included in the statute, how can it be done? There is no mention of the statute or regulations anywhere about what the process will be. Leaders of the parties demanding and not holding a special general convention have been making their own arguments by pointing to this provision. Legal practitioners say that the special general convention is legal because it is in the party's statute. President Sher Bahadur Deuba's side has also not been able to give a proper argument that this general convention is illegal.
What are the records of the Congress with the Election Commission? What have both sides updated?
So far, Sher Bahadur Deuba is the President of the Congress in the Election Commission's records. He was elected President in the 14th General Convention held in Mangsir 2078. Until Tuesday, the records of the Election Commission only contain the details submitted after this general convention under Deuba's leadership. When the Congress submitted its closed list of candidates for the proportional election on 14 Poush, Deuba's signature was also on it. Despite the disagreement of General Secretaries Gagan Kumar Thapa and Bishwaprakash Sharma, President Deuba had designated the proportional list and the candidates for the National Assembly. So far, the Thapa faction has not submitted any details to the Election Commission.
Will the Election Commission give legitimacy to the election of a new leadership in the Congress from the special general convention? What are the laws and provisions that the commission will look into?
The special general convention faction registered its candidacy on Tuesday to elect a new leadership, and the election process is set to proceed on Wednesday. For this, the old election committee has been dissolved and a new election committee has been formed. If this election committee does not reach an agreement with the establishment faction, it will select a new leadership from one of the options, either through elections or agreement, on Wednesday. If the special general convention faction selects a leadership, it will file an application with the Election Commission for an update. Therefore, this dispute is likely to reach the court through the commission.
If the special general convention changes the leadership, the Commission must be informed as per Section 51 of the Political Parties Act. The said section states that the party must inform the Commission of any changes or amendments to its name, statute, rules, seal, flag or symbol, changes in office bearers and other matters as specified by the Commission within 30 days. The Commission shall conduct necessary studies and investigations on the information and activities received in this manner and if found to be in accordance with the constitution, act, rules and the party's statute, the Commission shall update the details of the concerned party.
Since it is difficult for the Commission to easily update the details received from one party in the event of an internal dispute in the party, it is customary to take a few days or form a bench and make a decision after hearing both parties. This will take up to 45 days. The other party may approach the Commission to stop it, saying that the details given by the special general convention supporters are incorrect. In such a situation, it seems that the issue of resolving disputes regarding the recognition of the party as per Section 9 of the Act will be attracted and the Commission should reach a decision accordingly.
Section 43 under Chapter 9 states that the Commission shall have the authority to resolve disputes between two or more parties or between two or more factions of the same party regarding the name, seal, statute, flag, symbol, office bearers, central committee or the authenticity of the decisions of the central committee. If claims are made by both parties regarding the name, flag, etc. of the central committee and the party, the Commission shall proceed with the dispute resolution process as per Sections 43, 44, 45 and 46 of Chapter 9. If no agreement is reached between the two parties during the dispute resolution process, the Commission shall, on the basis of evidence, recognize one party as the party that existed before the dispute arose.
In a situation where recognition cannot be given to only one party, the party with the majority in the central committee may be recognized as the old party and the other party as a separate political party and registered. However, the new party formed in this way shall not be allowed to participate in the upcoming elections. Since the deadline for registering parties for the purpose of the House of Representatives elections expired on 14 Mangsir, the new party will have to remain out of the elections.
The Election Commission may not enter into the dispute with the Nepali Congress by citing the regulations on political parties. Rule 23 (6) of the regulations states that ‘no action shall be taken regarding the resolution of disputes between parties during the election period.’ Such a provision has been made in the regulations because the Commission is busy with election preparation and management, so it cannot enter into dispute resolution and it will also cause many complications. However, legal experts say that the Commission cannot avoid it in this way since it is competent.
Article 15 of the Nepali Congress statute is also involved in this dispute. The article states that ‘the Central General Convention shall be the highest authorized body of the party’. Since the Central General Convention itself will elect the party’s Central Committee, the Special General Convention side will claim that it is legitimate based on this. It seems that the dispute of recognizing the previous Central Committee or recognizing the representatives of the General Convention delegates who participated in more than 60 percent of the total number of delegates could be complicated if it reaches the court.
What is the Commission doing about the Special General Convention?
The Election Commission has been closely monitoring the special general convention of the Nepali Congress since it began. The officials of the commission and the legal department are studying the statutes, acts, rules and past precedents of the Nepali Congress. The commission has started an internal study based on the assumption that this dispute will come to the Election Commission after the election process. However, the Election Commission has not made any statement on the matter public.
The special general convention party has also been preparing by collecting signatures and citizenship certificates in three files of the general convention representatives at the convention venue, keeping in mind the issue of going to the Election Commission. Acting Chief Election Commissioner Ram Prasad Bhandari has responded that there is no need for the commission to enter into a dispute going on outside any party. He said that the commission should not become a referee to decide who is fighting on the street.
Such disputes reach the Election Commission from time to time. The NCP dispute, the dispute between Rishi Kattel's Communist Party and the dispute between Resham Chaudhary's Civil Liberties Party had reached the commission. The precedent of resolving these disputes will come in handy if the commission faces a dispute with the Congress. The dispute of the then NCP, formed under the leadership of KP Sharma Oli and Pushpa Kamal Dahal, had reached the Election Commission. The commission was criticized for not giving a decision on this dispute in time. This dispute had also reached the court.
Similarly, the Election Commission had recognized the conference held by the other party in the Nepal Communist Party led by Rishi Ram Kattel, which was held by a majority. Party Vice-Chairman Lok Narayan Subedi had held the party's national conference in Janakpur on 11-12 Chaitra 2078. The conference had passed the statute amendment, political report and also elected a 44-member central committee. The commission concluded that the national conference was legal. Similarly, after being released from prison on 12 Poush 2080, Resham Chaudhary held the party's general convention in Tikapur, Kailali and became the president of the Civil Liberation Party. The commission did not recognize that general convention after investigating the complaint filed against him.
What is the argument of legal practitioners from both sides of the Congress on the special general convention and the selection of new leadership?
Both the special general convention and the establishment sides of the Congress have been continuously consulting legal practitioners on the special general convention and the selection of new leadership. Immediately after submitting the signatures to call the general convention, General Secretaries Thapa and Sharma had discussed with legal experts. The establishment side has been seeking legal consultations after 50 percent of the signatories to the special general convention at Bhrikutimandap were cut off. On Monday, President Deuba had consulted former Attorney General Khamma Bahadur Khati, former President of the Democratic Lawyers Association Yogendra Bahadur Karki, and senior advocate Sher Bahadur KC.
Before that, Congress leader Shekhar Koirala had also consulted them. The legal practitioners had mainly raised three issues. First, they suggested that since the issue of calling a special general convention is in the regulations, it should be accepted, but since it is not clear who will call it, there will be a question of legitimacy.
Second, the general convention cannot elect leadership when the president and office bearers are not vacant, and third, the Election Commission had suggested that if there is a dispute over legitimacy, it should seek the majority of the existing central committee rather than the general convention representative.
However, senior advocate Shambhu Thapa, constitutional expert Bipin Adhikari, outgoing president of the Nepal Bar Association Gopal Krishna Ghimire and advocate Chandrakant Gyawali, among others, have claimed that since the general convention was held in a formal manner, it will be recognized. They claim that the same general convention representative who elected the central committee in 2078 BS also participated in the special one and that the decision made by the majority will be recognized. Legal experts have said that since the constitution of the Nepali Congress recognizes that the general convention representative is the highest authority, everyone should accept the decision made by the majority in the special general convention.
