As the alliance between the Nepali Congress and the UML weakens, the possibility of a change of government in Koshi Province rests on the interpretation of Article 168(5) of the Constitution.
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The politics of Koshi province has become turbulent again after the ruling coalition formed between the Congress and the UML about two years ago gradually crumbled at the provincial level.
Although there is talk of a change in the power equation in Koshi after the Far West, Karnali and Bagmati, the process of changing the government does not seem easy like in other provinces due to the government formed under Article 168, Clause (5) of the Constitution. This constitutional arrangement has made the political debate in Koshi more complicated.
On the one hand, Chief Minister Hikmat Kumar Karki has said that the constitutional path to dissolving the provincial assembly is open if the government falls, while on the other hand, the leader of the parliamentary party of the main opposition NCP, Indra Bahadur Angbo, has claimed that such an interpretation is contrary to the precedent of the Supreme Court. The ruling partner Nepali Congress, on the other hand, is adamant that it will not take any decision until the center gives instructions.
With the Congress preparing to recall ministers from all provincial governments, concerns have increased about the future of the Koshi government. Congress Koshi Province Parliamentary Party leader Uddhav Thapa said that the final decision will come from the center. The meeting of the Congress province mechanism held on Ashad 32 also concluded with the conclusion that the center's instructions will be awaited. 'We will take action in the province only after a concrete decision comes from the center,' Thapa said.
According to him, the Congress now has three options: to continue cooperation with the UML, to break with the UML and form a new equation with the NCP, or to remain in the opposition if the government cannot be formed through any of the options.
Chief Minister Karki claimed that since the current government was formed under Article 168(5), there is no possibility of forming a new government even if the Congress withdraws support.
Article 168(5) of the Constitution was used for the first time in Koshi Province on Asoj 27, 2080. After the then Chief Minister Hikmat Kumar Karki lost the vote of confidence, Nepali Congress MP Kedar Karki was appointed Chief Minister, claiming the support of the majority of the provincial assembly members. After Kedar Karki also lost the vote of confidence on 26 Baisakh 2081, Hikmat Kumar Karki of UML was appointed Chief Minister again under the same constitutional arrangement.
‘If this government falls, there is a constitutional and legal way to dissolve the provincial assembly.’ However, I am not in favor of taking such a decision alone,’ Hikmat said in a conversation with journalists, ‘We should move forward only on the basis of consultation and consensus with all parties.’
He also rejected the talk that relations with UML Chairman KP Sharma Oli have cooled recently and that Oli is active in removing him.
On the other hand, the parliamentary party leader of the main opposition NCP, Angbo, has said that the entire responsibility for the recent instability seen in the provincial governments lies with the UML-Congress alliance.
Making his views known on social media on Saturday, he stated that the turmoil seen in the provincial governments is not due to the opposition but is the result of disagreements within the ruling alliance.
‘The main reason for the instability of provincial governments is not the opposition parties, but the misunderstanding between the ruling UML-Congress alliance,’ he said.
Claiming that the political developments seen in last Bhadra had already confirmed that this alliance was unprincipled, he said that the alliance should have ended at that time. However, he believes that it is not appropriate to cause instability when the term of the provincial assembly is about to end.
What is the provision in Article 168(5)?
Article 168 of the Constitution of Nepal has determined the process for appointing the Chief Minister in the province. Its clause (5) is a provision kept as a last constitutional option.
According to the said clause, if no member is able to obtain a vote of confidence as per clauses (1), (2), (3) and (4), the provincial chief can appoint such a member of the provincial assembly as the Chief Minister, who presents the basis for obtaining the confidence of the majority of members.
According to constitutional scholars, under this system, there is no compulsion to be the leader of a parliamentary party to become the Chief Minister. Any member who can garner the support of the majority of the members of the Provincial Assembly can become the Chief Minister.
The Karki-led government was formed under this system. That is why this article has come to the center of the debate on the change of government.
However, the constitutional debate is not limited to this. The Supreme Court, in its constitutional interpretation regarding the dissolution of the House of Representatives, has established the principle that the Parliament or the Provincial Assembly should not be dissolved as long as there is a possibility of forming an alternative government. Therefore, constitutional scholars say that it is not possible to conclude that the Provincial Assembly will automatically dissolve if the government formed under Article 168(5) falls.
This issue has become the center of debate in Koshi after Chief Minister Karki expressed that the path to the dissolution of the Provincial Assembly is open if the government falls.
Angbo, however, has opposed it. According to him, the propaganda that the government formed under Article 168(5) can dissolve the Provincial Assembly at will is wrong.
He reminded the Supreme Court's constitutional bench that the Provincial Assembly cannot be dissolved as long as there is a possibility of two or more parties forming a majority government.
'The rumor that the Provincial Assembly will be dissolved if the Chief Minister or ministers want to is either spread out of ignorance or intentionally,' he said.
Senior advocate Tikaram Bhattarai also says that the purpose of Article 168(5) is not to dissolve the Provincial Assembly but to protect it. 'Article 168(5) has been included in the Constitution as a measure to prevent the dissolution of the Provincial Assembly. Its purpose is not to dissolve the Provincial Assembly, but to protect it,' he says.
The province that has experienced the most political instability after the 2079 elections is Koshi. The Chief Minister changed repeatedly, the dispute over government formation reached the Supreme Court, and finally, with the support of the majority of the provincial assembly members, a Karki-led government was formed under Article 168(5).
This is why, even if the Congress withdraws support, there is no automatic formation of a new government like in other provinces. Only the possibility of forming an alternative government, a majority test, and the constitutional process will determine Koshi's new power equation.
Currently, the Congress is waiting for the decision of the center, the UML is trying to save the government, while the main opposition NCP, although not rushing to join the government immediately, has given a signal that it is ready to provide a solution if a constitutional crisis arises. Therefore, Koshi's future political direction seems to be determined by the interpretation of Article 168(5) of the Constitution, the Supreme Court's precedent, and the political consensus between the parties, rather than the arithmetic of the parties.
