Nepal’s Constitutional Crisis: When a 27-Hour Protest Rewrites the Rules of Power

Constitution Study #14: Clash of the Constitutional Mandate and Popular Uprising

A Nation at a Constitutional Crossroads

In a move that has shaken Nepal’s political foundations, the Gen Z-led anti-corruption movement on September 8-9 swept the KP Sharma Oli government from power. In the ensuing political vacuum, President Ramchandra Paudel executed an unprecedented solution: the September 12 appointment of former chief justice Sushila Karki as interim Prime Minister. This decision, followed by the dissolution of the House of Representatives, was hailed by some as a necessary response to the popular will but has plunged the nation into its most profound constitutional crisis yet.

This is more than a mere political debate; it is a fundamental stress test of Nepal’s young constitution. The appointment has ignited a fierce legal battle, pitting the raw power of popular sovereignty against the established bulwarks of judicial precedent and the separation of powers. As ten petitions challenging the government’s legitimacy land at the Supreme Court, Nepal is forced to confront a question that will define its democratic future: Are the rules that govern the state absolute, or can they be rewritten by the force of a people’s movement?

1. The Blueprint for Power: How Nepal’s Executive is Supposed to Work

The current crisis is unintelligible without a firm grasp of Nepal’s constitutional blueprint for executive power, specifically the procedures laid out in Part-7 of the Constitution. Article 74 establishes a “multi-party competitive federal democratic republican parliamentary form of governance.” This framework is not merely a suggestion; it is the binding charter for political legitimacy.

At its core, Article 76 provides a clear, step-by-step process for appointing a Prime Minister. The President is to appoint the leader of the parliamentary party that commands a majority in the House of Representatives. Recognizing the complexities of coalition politics, the article also provides a sequence of fallback options in clauses (2), (3), and (5) for scenarios where no single party holds a majority. This constitutional playbook is the only established path to forming a government, which the recent political rupture cast aside.

2. The Political Rupture: A Protest, a President, and an Unprecedented Appointment

The crisis unfolded with breathtaking speed. Following the ousting of the KP Sharma Oli government by a massive Gen Z-led anti-corruption movement on September 8-9, the nation’s political order was upended. On September 12, President Ramchandra Paudel, acting on the recommendation of movement representatives, appointed former chief justice Sushila Karki to lead an interim government. On Prime Minister Karki’s recommendation, the President then dissolved the House of Representatives and gave the new government a six-month mandate to conduct parliamentary elections, scheduled for March 5. This rapid sequence of events, occurring over just a few days, bypassed the established constitutional process and triggered an immediate judicial backlash in the form of ten petitions filed in the Supreme Court.

These petitions challenge two distinct but deeply intertwined actions: the formation of Karki’s government and her subsequent recommendation to dissolve the House. The challenge to Karki’s appointment is therefore foundational; if her premiership is deemed unconstitutional, then her recommendation to dissolve the House—the second major point of contention—is invalid from the start.

3. The Core of the Controversy: Can a Former Chief Justice Become Prime Minister?

The petitioners’ case against Sushila Karki’s premiership hinges on a direct, literal reading of a single constitutional clause designed to safeguard judicial independence. They argue that her appointment as Prime Minister is an unambiguous breach of Article 132 (2), which is intended to prevent the politicization of the judiciary. The article states:

“No person who has once held the office of Chief Justice or a Justice of the Supreme Court shall be eligible for appointment to any government office, except as otherwise provided for in this Constitution.”

However, a sophisticated counter-argument has emerged, positing that this clause does not apply to the prime ministership. Ram Lohani, Associate Professor, Tribhuvan University first argues that the Prime Minister’s post is not an office that the President “assigns” someone to work in. Whereas the President has discretion in other appointments, Article 76 obligates the President to appoint any person who meets the constitutional criteria, such as commanding a majority. The Prime Minister is therefore not “put to work” by the President but rather assumes an office by constitutional right.

This leads to the second, crucial distinction: the difference between a “government office” and a “political post“. Lohani argues that Article 132’s prohibition applies only to the former. He notes that other constitutional articles, such as 238(8) and 240(8), explicitly permit former members of constitutional commissions to hold “political posts” while barring them from other “government service.” This distinction, he argues, implies that political roles like Prime Minister fall outside the scope of the prohibition placed on former justices. This clash between a literal interpretation and a nuanced, structural one lies at the heart of the legal controversy.

4. A Dissolved House: Constitutional Move or a Breach of Precedent?

The second constitutional challenge targets the dissolution of the House of Representatives, an act petitioners claim is both unconstitutional and a direct repudiation of the Supreme Court’s own landmark rulings. The argument carries significant weight, as:

“The court had reinstated the House of Representatives twice after it was dissolved by the then Oli-led government in 2020 and 2021. It had ruled that the constitution envisions a full five-year term for the lower house.”

Petitioners contend that in endorsing the dissolution, President Paudel violated his primary duty under Article 61: “to abide by and protect the Constitution.”

In response, supporters of the move, including some constitutional experts, frame the dissolution not as a legal breach but as a “political solution to a political problem.” They argue that the extraordinary circumstances, born from a popular uprising against a failing political class, demand a departure from rigid legalism. This perspective is articulated forcefully by senior advocate Dinesh Tripathi:

“In the changed context, decisions should be made accordingly by the court. This is the change brought about by a political movement.”

This viewpoint asks the court to prioritize the perceived spirit of political change over its own carefully constructed precedent, presenting a direct challenge to the court’s role as the ultimate arbiter of constitutional text.

Conclusion: Law, Spirit, and the Path Forward

Nepal now stands at a precipice, forced to reconcile the rigid text of its Constitution with the undeniable force of a popular movement demanding a political reset. The creation of an extra-parliamentary government and the dissolution of the House represent a profound departure from the constitutional order, justified by its architects as a necessary response to an existential crisis of governance.

The Supreme Court’s impending decision will be its most consequential to date. The verdict will not only determine the legality of Karki’s government but, more importantly, will define the very nature of Nepal’s constitutional democracy. At stake is a fundamental question:

Is this a singular, emergency-driven deviation from the rules, or does it set a precedent for a new, extra-constitutional pathway to power that could be abused in the future?

The court’s ruling will determine whether Nepal’s democratic institutions are resilient enough to withstand political storms or fragile enough to break under the weight of popular pressure.