Forming the Council of Ministers: A Nepalese Perspective and Critical Examination

The recent political scenario in Koshi Province, Nepal, has been marked by instability and controversy. Within a span of six weeks, the court has twice declared the government led by Uddhav Thapa unconstitutional. The first instance was on July 27, 2023, when the court ordered a new provincial government to be formed within seven days. The basis for this decision was the unconstitutionality of the Thapa-led government, which had included the support of the then Speaker Baburam Gautam in Thapa’s claim of majority.

The narrative took another twist on September 8, 2023. The Supreme Court ordered Koshi’s Provincial Head to appoint Hikmat Karki, the provincial assembly leader of CPN-UML, as the chief minister of the province within a mere 48 hours. This order was issued because the July 27 vote of confidence secured by Uddhav Thapa of the Nepali Congress was unconstitutional. The verdict underscored that lawmakers leading the assembly should remain neutral and are not obliged to toe the party line. These developments underscore the ongoing political crisis in Koshi Province and highlight the challenges faced by Nepal’s federal system.  In Today’s article, I have described the formation of the council of ministers under the Nepalese constitution. 

Background
If we look at the government system of the world, usually two types of government systems are found i.e. parliamentary system of government and presidential form of government. There has been a higher level of authority which is often known as the Cabinet or Council of Ministers which is the body of high-ranking officials who advise and assist a head of state or government. 

In parliamentary systems, the government is formed by the party or coalition with the majority representation in the parliament. The leader of this party becomes the prime minister or chancellor, under the chairmanship of the Prime Minister the council of ministers is formed. This concept originated in Britain and has been adopted by several former colonies.

In contrast, presidential forms of government are formed from outside the legislative. The president serves as both the head of government and the head of state, having the power to select secretaries who are accountable to the president rather than the legislative majority.

The formation of a council of ministers may differ from country to country in terms of the constitutional provisions of a particular country.

Concept of formation of a council of ministers
In Ancient Egypt, priests assisted the pharaohs with administrative duties by acting as councils of ministers. The Maurya Empire under the emperor Ashoka was ruled by a royal council. In the United Kingdom and its colonies, cabinets began as smaller sub-groups of the English Privy Council. The roots are In the 11th century. The Curia Regis (boron) was replaced by the Privy Council around the 14th century. The term comes from the name of a relatively small and private room used as a study or retreat. Phrases such as “cabinet counsel” mean advice given privately to the king. This was a group of prominent men, mainly from the church, aristocracy or gentry who offered advice to the monarch.

The constitutional changes of the late 17th and early 18th centuries helped develop the small informal circle of advisors into the beginnings of the modern Cabinet. Robert Walpole held occasional meetings with the king’s ministers. William Pitt (the Younger, 1759-1806) eventually established the Prime Minister's right to ask ministers to resign, a key part of the Prime Minister’s power. 

The passage of the Reform Act in the United Kingdom and its colonies led to the establishment of cabinets, which began as small sub-groups of the English Privy Council. In 1832, it clarified two basic principles of cabinet government: that a cabinet should be composed of members drawn from the party or political faction that holds a majority in the House of Commons and that a cabinet’s members are collectively responsible to the Commons for their conduct of the government. Henceforth, no cabinet could maintain itself in power unless it had the support of a majority in the Commons.

The equivalent terms for Cabinet are “Council of Ministers”, “Government Council” or “Council of State”.

Nepal also had a similar type of small group of elite class which was presided over by kings and there used prominent elite class members called “Bhardari” that system used to run the administrative system of that time.

After the rise of the Rana regime, all the top-level posts were replaced by the Ranas with the emergence of democracy there has been a started system of council of ministers and in the panchayat system also there is a council of ministers where executive powers were exercised by His Majesty through the Council of Ministers to aid and advise His Majesty in the exercise of His functions. 

As of today, there is a President as Head of State and a Prime Minister heading the Government. Let’s now discuss the provisions for the formation of a council of ministers under the present constitution of Nepal. 

Formation of Council of Ministers as per the constitution of Nepal 
Nepal has adopted the Parliamentary Constitution In the Parliamentary system: the Council of Ministers shall be formed under the chairmanship of the Prime Minister appointed by the President. 

According to the constitution of Nepal, the Prime Minister constitutes the Council of Ministers comprising a maximum of twenty-five Ministers including the Prime Minister, by the inclusive principle, from amongst the members of the Federal Parliament. The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and the Ministers shall be individually responsible for the work of their respective Ministries to the Prime Minister and the Federal Parliament. 

Process of formation of Council of Ministers:

First situation: According to Article 76(1), of the constitution provides for the formation of a government with a single majority,  leader of the parliamentary party with a majority is appointed as the Prime Minister

Second situation: Article 76 (2) says the President appoints as prime minister a member of the House of Representatives who can command a majority with the support of two or more parties. “If the parties fail to make a claim as per Article 76 (2), the government leadership will go to the largest party.

As per the third condition Article 76 (3), the parliamentary party leader of the party which has the highest number of members in the House gets appointed if there is no possibility for the coalition government or the prime minister of the coalition fails to win the vote of confidence within 30 days. 

Fourth Condition: Appointed per Article 76(3).  If the Prime Minister is unable to receive a vote of confidence, if any member of the House of Representatives presents a basis for receiving a vote of confidence in the House of Representatives, the President must appoint such a member as the Prime Minister under Article 76(4).  

Thus, if the Prime Minister cannot be appointed per the provisions mentioned in Article 76 (5) or if the appointed Prime Minister fails to receive a vote of confidence, the President shall dissolve the House of Representatives according to Article 76 (7) and set the date of the election so that another House of Representatives can be elected within 6 months on the recommendation of the incumbent (temporary acting Prime minister and council of ministers) Prime Minister. There is a constitutional provision that a no-confidence motion cannot be registered for two years after the trust vote.

Similarly, there is a provision for the appointment of a non-Federal member except the person who is defeated in the election of such house of representative to be minister for 6 months during such period must obtain membership of parliament failure to obtain membership of the Federal Parliament given time he or she shall not be qualified to be reappointed to the office of Minister during the term of the then House of Representatives.

The recent Supreme Court’s verdict on the dissolution of Parliament held that Under Article 76 of the Constitution, the procedure for the selection of the Prime Minister and formation of the government needs to be interpreted harmoniously. The Constitution forbids the dissolution of HoR if (a) a new Prime Minister could be appointed and (b) the newly appointed Prime Minister could obtain a vote of confidence. From this, it is clear that before invoking Article 76(7) by the Prime Minister to recommend house dissolution, the conditions of Article 76(5) have to be fulfilled. No political parties have the power to issue whip to the lawmakers who support the formation of a government under Article 76(5) on the rationale that those lawmakers should be allowed to use their wisdom and exercise their power with honesty, irrespective of their political party representation.

In the case of the formation of an alternative government to be formed in accordance with Article 76(5), the Prime Minister, who has been appointed in accordance with Article 76(3) and failed to receive a vote of confidence from the House of Representatives, or who has been dismissed from office due to his refusal to enter into the process, shall not have the right to make a claim for appointment to the post of Prime Minister under Article 76(5) immediately after that process. The rule of (Harmonious interpretation should be followed when interpreting constitutional provisions.

Nepal has adopted a three-tier federal system, with three levels of state organs. At the provincial level, there is also a state executive. Under the Constitution and state law, the executive power of the state is vested in the State Council of Ministers. However, if a state executive does not exist due to the enforcement of federal rule, the Chief of State shall exercise the executive power of the state as directed by the Government of Nepal. The Chief Minister is the chairman of the State Council of Ministers. The Chief Minister is appointed by the Chief of State, who is the representative of the Government of Nepal and is appointed by the President.

The Chief Minister constitutes the State Council of Ministers, which consists of a maximum of 20% of the total number of members of the State Assembly, including the Chief Minister. The ministers are selected from among the members of the State Assembly following the inclusive principle. The provisions for forming the State Council of Ministers are similar to those for forming the Federal Council of Ministers.  Which is incorporated in Article 168 of the Constitution as similar provisions to the federal Council of Ministers.   

“Forming the Council of Ministers: A Nepalese Perspective and Critical Examination”
Nepal has tested several constitutions and forms of government in a short time. This prevailing unstable attitude of Nepalese leadership shifted before institutionalizing any systems and constitutions properly. They always criticized the systems and constitutions but never accepted their incompetence. 

In terms of the government system and power sharing between the President and Prime Minister, there has been a great disparity between the major political parties during the drafting of the new constitution, but the unstable and selfish tendency of Nepalese leadership follows selfishness and factionalism rather than principle. When interest meets “lust for power,” they turn into overnights.

Bending, interpreting, and amending the constitution and laws as per own interest leads the country towards a political and constitutional crisis. During the Formation of Government, the Prime Minister has reshuffled his cabinet eleven times, once in Paush, three times in Marg, twice in Falgun, once in Chaitra, three times in Baisakh and once in Jestha.  Afterwards, only five months later, the cabinet became complete: until that time, the government was dysfunctional.

Since 1994, no government has been formed and led by a single party. As Nepali politicians, they are always concerned with winning elections, gaining political power, and increasing their own wealth to ensure their success in the next election. They put aside all pro-people agendas and policies as long as they cling to power. There has been a series of laws and ordinances used to make way for the ladder of government. 

The Provincial governments fail to serve their purpose. The quotation “taking Singha Durbar to the villages,” seems not for the ruled ones but for the ruler. The political parties continuously change share power among parties and bargain for political power among parties to create coalition governments. Several times, governments have split ministries and gained the political advantage as a result of ugly competition among parties to divide and appoint more ministers, which complies with the spirit of Federalism, and as a result, the people are demanding three tiers to two tiers of federalism. 

The impasse in Koshi provinces for Game of Thrones led to snap elections where the speaker himself was involved in the formation of a government which is against the constitutional rule of law and independent and impartial representative of the Assembly, which was contrary to the constitution’s requirement for an independent representative of the Assembly. This has caused a great deal of controversy and the speaker is being accused of acting unconstitutionally and of violating the principle of an independent and impartial Assembly. The recent political scenario of the quest for the formation of government in Koshi provinces shows the unstable traits of the political parties of Nepal's ongoing political crisis in the Koshi Province as the Supreme Court declared the Uddhav Thapa-led government unconstitutional twice in six weeks. The Supreme Court ordered Koshi’s Provincial Head to appoint CPN-UML’s provincial assembly leader Hikmat Karki the chief minister of the province within 48 hours, terming the July 27 vote of confidence secured by Nepali Congress’s Uddhav Thapa as unconstitutional. With this, Thapa’s government has been thrown out of power. “The provision that any lawmaker of the federal parliament or the provincial assembly is chairing the assembly or Parliament, if votes against the direction of the party chief whip or remain neutral, is not considered to have quit the party, has also prioritised the concept that such a lawmaker chairing the assembly should remain neutral and is not obliged to the party whip,” the verdict reads.

The essence of the federal system has been persistently undermined by the central coalition of governments. It is now evident that if Koshi Province does not stabilize, the province will veer off into another uncertain trajectory, potentially leading to a snap election. The Supreme Court has twice declared the Thapa-led governments unconstitutional within a span of less than a month and a half, further exacerbating the political instability. This shows the Incompetent leadership for 30-35 years who were repeatedly tested and failed multiple times hindering the country’s progress. 

Conclusion
The Constitution of Nepal clearly outlines the formation of the Council of Ministers. However, political parties in Nepal have been interpreting the constitution as per their own interest, amending laws as per necessity of personal political benefit rather than public good, and issuing ordinances through back channels. This has led the country towards system failure. Major political parties have shown a complete disregard for political and legal morality. This has made Nepalese governments synonymous with instability, incompetence, and lust for power.