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Oli may activate Article 76 (5)

By Our Reporter
Dr Bhimarjun Acharya, constitutional expert, says that in accordance to the present constitution, there is no provision for the formation of a next government after Oli. Acharya said that as per the new constitution, the present government will continue until the new election.
This government has been constituted in accordance to the Article 298 (2), which Article of the constitution can be used for one time only [during the transitional period]. During the time of election of the Oli government, the Article 298 (2) has already been used, therefore, again it cannot be used.
In the Article 296 of the constitution, it is stated that the existing CA will automatically be converted to the Legislative Parliament. Under this provision also, the next PM cannot be elected, said Acharya.
However, another constitutional expert Purnaman Shakya says that another government can be formed through an election in the parliament. As the present political structure is based on parliamentarian system, there is an alternate to form a new government through an election as per the spirit of the parliamentarian system, said Shakya.
Another constitutional expert Dr Bippin Adhikari has said that in a democratic system, majority will dominate and by producing majority, the new government can be formed.
Another constitutional expert Dr Chandrakant Gyawali said that unless the sovereign power will remain with the people, the process of dissolving of the government and election of a new government is possible.
Advocate Ramesh Badal has stated that Article 296 of the constitution has transformed the CA into a Legislative Parliament and it will be in existence until 21 January 2018.
Furthermore, about the interim government, the Article 298 (2) has stated … “Within seven days of promulgation of the constitution if the parliament session is on or if there is no parliamentary session, within seven days of start of the parliamentary session, the new government should be elected. In the constitution, during the interim period [until election of new parliament on the basis of the new constitution] there is no provision of formation of the next government by toppling the already elected government.
In the Article 298 (8), it is stated that if the PM will tender resignation or vote of no-confidence is registered against the PM or the PM fails to produce vote of confidence or the PM is dead, in accordance to the Sub Article (10), the PM will quit.
At that situation, until the formation of a new government, the very government headed by Oli will continue.
But the constitution is silent on election of the second government in the interim period.
However, Article 100 (7) states that until formation of the federal parliament, all the works of the federal parliament will be done by the Legislative Parliament. But the confusion is that if so, why a separate Article 298 was introduced, Badal has questioned.
As per the constitution, during the transitional phase, the election of the PM can be possible for only one time.
As per the constitution, even if PM Oli wishes, the next PM cannot be elected from the present legislative parliament. Even if Oli will face vote of no-confidence and he will fall in minority, he will continue in the government as an officiating head of the government until election of the federal parliament by 21 January, 2018.
This constitution has not allowed the right to the PM to dissolve the parliament.
As per the Article 296, the tenure of this legislative parliament is till 21 January, 2018. Before dissolving the present parliament, the election of the new parliament should be conducted. Without election of local and provincial elections, the election of the federal parliament cannot be possible as without constitution of the Upper House, the federal parliament cannot be constituted. To conduct local and provincial elections, as per the Article 296, electoral constituencies should be fixed.
Within the given period, the government has to manage electoral constituencies, holding local and provincial elections and then holding election of the federal parliament. Without completing these jobs, this government cannot take rest.
Provision of amendment:
The challenge for the present government is to implement the constitution by ending the political disputes. Until now, there has been disputes on fixing the boundaries of the provinces. If this dispute is over, then the electoral constituencies should be managed on the basis of population. If these provisions are accepted by all the political parties, then only the election is possible. But the question is whether the government can complete all the tasks within remaining one and eight months!
Nevertheless, if there will be national consensus among the political parties, the constitution can be amended.
By amending the constitution, the provision of election of a new government can also be introduced if the UML will agree on that.
Ending hurdles:
In the constitution, there is the provision of ending the hurdles in the implementation of the constitution.
If needed, under the Article 305, on the recommendation of the Council of Ministers, the President can remove hurdles in the constitution. If the PM is positive, then he can recommend the President to form a new government by removing constitutional hurdles. If the PM will become negative on this proposal, this is not possible.
Meanwhile, if the PM is negative on formation of a new government, by using the Article 305, he can chose election as an alternative to the existing problem when he will face a vote of no-confidence. The PM can also use Article 76 (5) and announce an election date with the commitment of holding elections within six months, and continue the government for further six months.

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