The upcoming government is to be formed under Article 76 (2) of the Constitution of Nepal.
As none of the political parties garnered clear two-thirds majority in the recently held general elections, the government is to be formed under Article 76 (2).
Now, President Bidhya Devi Bhandari ought to invoke Article 76 (2) and call on parties to form a coalition government.
Article 72 of the constitution contains the provision for government formation.
Clause 1 of the Article 72 states the President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives (HoR) as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.
Since none of the parties could command majority in the HoR, one can rule out invoking Article 76 (1) for government formation.
A political party must have won 138 seats in the 275-member HoR to command a single majority in the House. Clearly, since this did not happen, Article 76 (2) is to be invoked.
Article 76 (2) states that in cases where no party has a clear majority in the House of Representatives under clause (1), the President shall appoint as the Prime Minister a member of the House of Representatives who can command majority with the support of two or more parties representing to the HoR.
According to the constitutional provisions, the Prime Minister should be appointed within 30 days of the announcement of the final results of the HoR election in accordance with Article 76 (2) of the constitution.
The Election Commission (EC) has said that the final result of the election would be announced by this (Tuesday) evening.
"The final result of the proportional representation (PR) category would come by Tuesday evening," said EC Spokesperson Shaligram Sharma Paudel. He added, "Some process of PR category remains."
The process for the formation of a new government would start as soon as the Election Commission submits the final result, including FPTP and PR categories, to the President's Office.
If a situation arises whereby formation of a government is not possible under Article 76 (2), then the President shall appoint as the Prime Minister the parliamentary party leader of the party which has the highest number of members in the HoR.
Article 76 (3) states, "In cases where Prime Minister cannot be appointed under clause 2 no later than thirty days after the date of declaration of the final results of HoR election or the Prime Minister so appointed fails to secure a vote of confidence under clause 4, the President shall appoint as the Prime Minister the parliamentary party leader of the party which has the highest number of members in the HoR."
Similarly, Clause 4 states that the Prime Minister appointed under clause 2 or 3 shall obtain a vote of confidence from the HoR no later than thirty days after the date of such appointment.
Next, Clause 5 again states that in cases where the Prime Minister appointed under clause 3 fails to obtain a vote of confidence under clause 4 and any member under clause 2 presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister.
Similarly, Clause 6 of Article 76 mandates the Prime Minister appointed under clause 5 to obtain a vote of confidence under clause 4.
In the worst-case scenario when a government cannot be formed under clause 5 and obtain a vote of confidence pursuant to clause 4, clause 7 says that the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months.
Clause 8, meanwhile, states, "Procedures on the appointment of the Prime Minister under this Article must be completed no later than thirty five days after the date of declaration of the final results of election to the HoR held under this Constitution or the date on which the office of the Prime Minister has fallen vacant."
Lastly, clause 9 states, "The President shall, on recommendation of the Prime Minister, constitute the Council of Ministers comprising a maximum of twenty five Ministers including the Prime Minister, in accordance with the inclusive principle, from amongst the members of the Federal Parliament."
Though the results of 165 FPTP constituencies have been published, it is yet to be known who will lead the next government and with whose support.
Even though the Election Commission has yet to announce the result of the PR category, it is almost fixed that NC will become the first party, given the number of seats it will get under PR system.
The NC has won 57 FPTP seats and is poised to win 32 PR seats in the HoR.
The CPN (UML) emerged as the second largest party with 44 FPTP seats and is poised to get 34 PR seats.
Similarly, emerging as the third largest party, the Maoist Center has 18 FPTP seats and is set to get 14 PR seats.
In the same way, Rastriya Swatantra Party (RSP) won seven FPTP seats and is likely to get around 13 PR seats; Rastriya Prajatantra Party (RPP) won 7 FPTP seats and is set to get seven PR seats, the Janata Samajwadi Party (JSP) won seven FPTP seats and will likely get five PR seats, and the Janmat Party will get 4 PR seats having won one FPTP seat.
Likewise, several other parties have won FPTP seats but have low chances of crossing the three percent threshold on the PR side. Among them are CPN (United Socialist) Party with with 10 FPTP seats, Nagarik Unmukti Party three FPTP seats, Loktrantrik Samajbadi Party (LSP) four seats, Rastriya Janamorcha one seat, Nepal Workers and Peasants Party one FPTP seats.
Also, 5 FPTP seats were clinched by independents candidates across the country.
