Hundreds of thousands of Nepal Communist Party (NCP) cadres are struggling to pick sides between Prime Minister KP Oli-led faction and the one jointly led by Pushpa Kamal Dahal and Madhav Kumar Nepal. For some guidance, they are waiting for the Election Commission’s (EC) decision on election symbol and party name.

Each of the two rival factions has staked its claim on the old party name and election symbol. Both want the sun, which had been the election symbol of the then CPN-UML starting with the 1991 general election. The symbol—which UML had borrowed from left leader Padma Ratna Tuladhar who had used it when contesting Panchayat-era elections—became popular among voters after the 1994 UML-led government introduced various social security measures including elderly allowances.

The NCP decided to adopt the sun as its election symbol following the UML’s merger with the CPN (Maoist Center) in 2018. The combined outfit has all but split less than three years after that formal unification. But the legal dispute over party ownership is expected to be long and arduous, say observers.

It has been nearly a month since former Maoist commander Dahal severed ties with Oli after the prime minister decided to dissolve the federal lower house and call for fresh election at the end of April and early May. Each side held its separate factional meeting after the House was dissolved. Dahal-Nepal faction expelled Oli as party chief. In Oli’s place, former UML leader Madhav Nepal, who joined Dahal camp after the division, was appointed co-chairperson. In response, the Oli faction took away Dahal’s executive power as co-chairperson and amended the NCP statute to give Oli more rights.

The Dahal-Nepal faction summoned the Election Commission to legitimize its claim over the NCP, arguing that it had the support of the majority of the party central committee members. After submitting the signatures of 287 central committee members to the commission, Dahal said he could even invite all signatories to the commission if it so desired. Oli, meanwhile, formed an 1,199-member general convention organizing committee incorporating many new central committee members, which in turn gave him two-thirds majority support in the party.

Burden of proof

Although neither faction accepts the accusation of instigating the party split, leaders from rival camps have claimed their own outfit as official, putting the commission in a fix. The NCP statute has a provision whereby a party decision is validated only when both party chiefs—who, on paper, are still Oli and Dahal—endorse it.

In the past the election body used to officially recognize the outfit with the majority support of central committee members at the time of split. But the ruling party’s strange dispute has complicated the process. Neither faction says the party has split and the effort of each is focused on showing it has majority support.

Raj Kumar Shrestha, the commission spokesperson, says no one has informed the constitutional body about a formal split. “Both sides have asked us to update their decisions in party record with the commission. We have asked them to validate their decisions on legal grounds,” says Shrestha. “We can’t declare which faction is official NCP and which is a splinter party based on their current claims.”

According to its officials, if and when the commission decides a faction is legitimate, the party name and election symbol will go to that faction. The constitutional commission will thus legitimize the decisions of only one faction.

Are there chances of invalidating the claims of both the sides? An EC official, requesting anonymity, says it is one of many options on table. “If the commission finds that neither side’s decisions are in line with party statute and rules, both claims could be invalidated,” he says. The commission has given a clear message to the two factions that neither side has solid legal ground to back its claims.

The commission’s invalidation of these competing claims may technically unite the NCP. However, a de facto unity is unlikely in the bitterly divided party. What next then? Another option will be for the factions to claim support of 40 percent lawmakers or majority central committee members in order to formally split the party.

Selective Acts

Amid the dispute the commission has been following Section 51 of the Political Parties Act instead of Section 43 and 44 of the same Act; the latter two would have been invoked if the commission believed the party had formally split. But Section 51 is related only to updating political parties’ decisions on changes in party statute, name, election symbol, or office bearers.

In separate letters sent by EC to the two factions on January 7, it cited Rule 25 (4) of the Regulations on Political Parties. This rule too is limited to updating party decisions in commission records.

“We have asked the two sides to update their claims citing laws, rules and party statute provisions under the Rule 25 (4) of the Regulations on Political Parties,” says spokesperson Shrestha.

No faction has thus far claimed the official NCP status with the signatures of at least 40 percent central committee members.

The commission’s correspondence with the NCP factions also suggests a possibility of invalidating both the claims. Yet both the factions are confident of their win. If the commission is seen as doing injustice to one faction, it is certain to knock apex court doors.

How long would the EC take to reach a final decision then? The EC, interestingly, isn’t obliged to give its final decision on the issue until the end of next week.

Chief Election Commissioner Dihesh Kumar Thapaliya is considered an Oli loyalist. But the CEC is in the minority in the commission as two other commissioners are not siding with Oli. Narendra Dahal, who was loyal to Oli until a year ago, has felt alienated after Oli appointed Thapaliya as chief commissioner, informs an NCP source. Another commissioner Ishwari Prasad Paudyal, who was nominated to the EC by Nepali Congress, is also likely to stand against Oli.

Interestingly, the Oli-led Constitutional Council on Dec 30 had recommended two other EC commissioners. For the purpose, the government had amended the Constitutional Council Act through an ordinance even amid the NCP dispute. Oli recommended Ram Prasad Bhandari and Janaki Tuladhar as the two other election commissioners. They are expected to assume office after January 28: In the absence of parliamentary hearing they need not face lawmakers’ scrutiny. They nonetheless have to wait for 45 days to be appointed by the president.

After the new commissioners assume office, CEC Thapaliya is expected to have a comfortable decision-making majority. That, speculates the NCP source, could work in Oli’s favor. 

Hidden majority

There is also a possibility that lack of clarity over competing claims coupled with the EC’s desire to avoid any controversy could make it withhold the NCP name and election symbol from both factions.

But, again, the Oli faction is confident. “From the old party, we have the chairperson, the general secretary and the party institution. So the Election Commission is bound to endorse our decisions,” says PM Oli’s legal adviser Baburam Dahal.

Ram Narayan Bidari of Dahal-Nepal faction is as confident that the EC will confer official name and symbol on his faction as it had the support of a clear majority of central committee members when the House was dissolved. “There is no doubt we will get the election symbol and official name as we have on our side nearly two-thirds of the original central committee members,” he added.

The Election Commission meanwhile is struggling to establish majority either way. It seems confused over whether to make a final decision based on the number of central committee members before House dissolution or after it.

The commission’s decisions could also be affected if the Supreme Court issues a stay order on a writ challenging Oli’s appointments in the election body. Advocate Om Prakash Aryal has filed a writ against the ordinance that allows the Constitutional Council (which appointed the EC commissioners) to make decisions on majority basis. Yet another writ challenges the council’s appointments at various constitutional bodies.

The Oli-led faction has already started its election-themed programs, holding mass gatherings and cadre-training programs all across the country. Oli wants to impress on the party rank and file that he has the backing of the Election Commission.

On the other hand, the rival Dahal-Nepal faction is busy protesting parliament dissolution. It is yet to start any election-focused program as it reckons the Supreme Court will reinstate the parliament and the question of elections will be rendered moot.

However you see it, this dispute isn’t going away any time soon.