Amid government’s unilateral moves, calls grow for adherence to constitutionalismWhen a meeting of the Constitution Council on January 20 decided to recommend names for the five constitutional bodies, the leader of the main opposition was not present in the meeting.
When a meeting of the Constitution Council on January 20 decided to recommend names for the five constitutional bodies, the leader of the main opposition was not present in the meeting.
The existing constitutional provision stipulates that there should be six members in the Constitutional Council, chaired by the prime minister, and one of them is the leader of the main opposition.
On March 25, when the Constitutional Council recommended an incumbent secretary for the post of chief election commissioner, the leader of the main opposition was again not present in the meeting.
The main opposition, Nepali Congress, has objected to Constitutional Council’s such moves of not taking its leader into confidence while making recommendations.
The entire episode has triggered a debate whether the incumbent government, which has a comfortable majority in Parliament, is trying to rule with majoritarianism, not giving two hoots to democratic norms, rule of law and constitutionalism.
Experts on legal and constitutional matters say there is a tendency among Nepal’s political leadership to show an utter disregard towards constitutionalism.
“Since 1990 the political leadership has not been following the constitutionalism in a proper manner and have been taking decisions just to serve their interests,” said Bhimarjun Acharya, a constitutional expert.
While addressing a function organised to administer the oath to officials and members of the Province 3 committee of the ruling Nepal Communist Party last week, party Chairman and Prime Minister KP Sharma Oli said his party does not follow Westminster model of parliamentary system but believes in “a homegrown republican type of parliamentary system” which attaches importance to principles of proportional representations and inclusiveness.
But his statement contradicts the government actions, experts say.
“By taking decisions in the absence of the opposition leader, the ruling party is making a mockery of the parliamentary system,” said Chandra Kanta Gyawali, a constitutional lawyer. “Such practices could lead the country towards authoritarianism.”
The composition of the Constitutional Council is such: The prime minister represents the executive, chief justice the judiciary, Speaker, Deputy Speaker of the House of Representatives and chairman of the National Assembly represent the legislature and leader of the opposition party represents those not in the government.
“The opposition’s role in a democracy is crucial. That’s why the constitution has laid down the provision of having the leader of the opposition party in the Constitutional Council. So taking decisions in the absence of the leader of the opposition undermines constitutionalism,” Gyawali told the Post. “Constitutionalism calls for adherence to constitutional principles—in letter and spirit.”
Since coming to power, the ruling Nepal Communist Party has on many occasions met with criticism for using its electoral mandate to undermine democratic principles—when it tried to curb dissent by imposing a ban on protest at Maitighar or when it bulldozed the National Medical Education Bill through Parliament despite the objection from the main opposition party.
“In parliamentary system, majority rules,” said Acharya. “But the way the Constitutional Council has been taking decisions without the leader of the opposition, it’s tantamount to contempt of constitution,” he added. “Decisions can be taken on majority basis if there is disagreement. But a major component—in this case the leader of the opposition—must not be ignored.”
However, today’s ruling party is not the only one to have shown disrespect to rule of law and democratic principles. Experts say the problem lies with the lack of political culture among parties and their leaders and such tendencies ultimately weaken institutions and ultimately democracy.
Back in 2010, during the Madhav Kumar Nepal’s government, the Constitutional Council had recommended 11 names for various constitutional bodies, including the name of Baburam Acharya for the post of chief commissioner of the Commission for Investigation of Abuse of Authority. The leader of the opposition was Pushpa Kamal Dahal, who is now the co-chair of the ruling Nepal Communist Party.
Dahal moved the court against the Constitutional Council decision. The court quashed all recommendations. Three years later, in a dramatic turn of events, the political leadership decided to hand over the government rein to then sitting chief justice Khil Raj Regmi. Subsequently, Lok Man Singh Karki was appointed to the post of chief commissioner of the anti-graft agency.
Dahal was among various leaders three years later to accuse Karki of “running a parallel government” and his party, Unified CPN (Maoist) was on the forefront to move an impeachment motion against Karki in Parliament. Karki, however, lost his job not through impeachment but through a Supreme Court order.
“These political leaders are not capable of leading governments as per the spirit of the democratic practices,” said Raman Kumar Shrestha, who served as the attorney general when Dahal was the prime minister in 2016.
Shrestha said the government must take opposition into confidence while taking crucial decisions and such decisions should be taken only after discussing multiple times. “Rulers must know that opposition party is also an integral part of the state,” Shrestha said. “This government is in the wrong direction from the very beginning.”
When the Oli’s CPN-UML and Dahal’s Maoist party decided to join forces in October 2017 in a bid to go to the elections the following year under a unified communist front, the Nepali Congress was quite critical of the move. The Congress party then went to the election campaign saying the communists would impose an authoritarian regime. But the party faced a historic drubbing, and the communists went on to win the elections on the “stability for prosperity” plank.
A thumping victory for the unified communist force—now known as the Nepal Communist Party—meant a majority government, the most powerful in two and a half decades with two-thirds majority.
“Going by his moves, it looks like Oli wants to establish an autocratic rule,” said Acharya, the expert on constitutional matters.
Experts stressed that political parties and their leaders should by now—after more than three years of the promulgation of the constitution—understand that a constitution is a philosophy.
“Leaders, particularly those in the government, should learn to read beyond what is written and understand the spirit of the constitution,” said Purna Man Shakya, a constitutional lawyer. “For example in the Constitutional Council, the leader of the opposition cannot block a decision. But for a prime minister, who enjoys two-thirds majority, it would have been better to have heard the opposition’s voice.”
After the Constitutional Council nominated chairpersons for the five commissions in the absence of the leader of the opposition, all four lawmakers from the Nepali Congress who are in the parliamentary Hearing Committee had boycotted the hearing.
But the 15-member hearing committee, in which the ruling party controls majority, had endorsed all but one name despite opposition boycotting the hearing.
The committee did not take any decision on one nominee, Samim Miya Ansari who had run into controversy, and he got appointed as the chair of the Muslim Commission automatically due to a legal provision. This too had raised a question over the relevance of the hearing committee as well as the intent of the ruling party.
When Deputy Speaker Shiva Maya Tumbahamphe, a member of the Constitutional Council, was asked why the Constitutional Council was taking decisions in the absence of the leader of the opposition, she said, “How long we should wait for the opposition leader?”
“He kept on skipping the meetings,” Tumbahamphe, one of the members of the Constitutional Council, told the Post.
But Nepali Congress Chief Whip Bal Krishna Khand said his leader, Sher Bahadur Deuba, did send correspondence to the prime minister saying he would not be able make it the Constitutional Council meeting. “But anyway there was no hurry to take decisions. Presence of the opposition leader in the Constitutional Council is a mandatory provision,” Khand told the Post.
“It’s not only a blunder but a sheer negligence on part of the prime minister. At least this latest decision should be corrected.”
The March 25 Constitutional Council meeting recommended Dinesh Thapaliya for the post of chief election commissioner and Bishnu Maya Ojha as a member of the Inclusion Commission.