In constitutional breach, none of the 13 constitutional commissions has full quota of office bearersThe National Human Rights Commission was the only one which had all five positions filled but the team’s six-year tenure ended two weeks ago. This suits the KP Sharma Oli government just fine, experts say.
The Constitution of Nepal envisions 13 different commissions. Most of them have the authority to keep the government in check to ensure the rights of the people. But none of these commissions has all five office-bearers.
Until two weeks ago, the National Human Rights Commission was the only constitutional body that had all its positions of the chair and four members filled.
However, with the retirement of the team led by Anup Raj Sharma, after completing its six-year tenure on October 18, there isn't a single commission that has a complete set of chairperson and members.
“The commissions have been left headless strategically only to weaken them,” said senior advocate Bhimarjun Acharya, who specialises on constitutional law.
And appointments in the constitutional commissions aren't a priority of Prime Minister KP Sharma Oli.
The Constitutional Council, a body headed by the prime minister and mandated to make appointments to the commissions, has not held a meeting since March 25 last year when Dinesh Thapaliya was recommended as chief election commissioner although the next elections are due only in 2022.
More than three dozen positions in the 13 commissions, meanwhile, remain vacant. Some have not had a full quota of members since the constitution was promulgated in 2015.
“The fact that the meeting of the Constitutional Council hasn’t been held for a year and a half shows Oli is least interested in giving full shape to the constitutional commissions,” Acharya told the Post.
The six-member council has the chief justice, the Speaker and the deputy Speaker of the House of Representatives, chairman of the National Assembly, and leader of the main opposition as members.
The Minister for Law and Justice also takes a seat when the appointment is related to the judiciary while the chief secretary functions as the secretary of the council.
The position of the deputy Speaker, which traditionally goes to the opposition, has been vacant since Shiva Maya Tumbahangphe resigned in January.
Acharya said delaying the appointment is also a breach of the constitution as it makes it mandatory for the Constitutional Council to recommend names for the constitutional commission office-bearers a month before they become vacant.
Article 284 (3) of the Constitution of Nepal says the recommendation, in accordance with this constitution, has to be made by the Constitutional Council a month before the posts of chief justice, chief and officials of constitutional bodies fall vacant.
Experts say the constitutional rights watchdog is more important than other commissions, mainly because it can question the government on protecting citizens’ fundamental rights.
The human rights watchdog had of late been issuing directives to the government on several issues related to the response on Covid-19 which ranged from management of the quarantine centres, ensuring treatment to those infected and providing relief to those who were left in trouble by the pandemic.
At the same time the commission had also been investigating the complaints related to human rights violations and monitoring quarantine facilities, hospitals and prisons to evaluate the government’s response to the pandemic.
Even the United Nations has expressed its concerns that pandemic could become the pretext for some governments to trample on individual rights and to repress the free flow of information.
Now, with the commission lacking its chairperson and members, the commission will be largely limited to its day-to-day administrative work. “We don’t have the authority to make recommendations to the government with regard to complaints of human rights violations,” Bed Bhattarai, secretary at the commission, told the Post. “Only the commissioners can make such recommendations.”
But not only during the pandemic, the Oli administration in general has been accused of refraining from providing the information related to human rights as well as advocating the rights of marginalised and deprived communities for their empowerment.
“The reluctance for appointments in the seven inclusive commissions for the last five years shows the human rights commission too won’t get its leadership anytime soon,” Charan Prasain, a human rights activist, told the Post. “More delays in appointments, the more time the Oli government will get to function arbitrarily.”
Of the seven inclusion commissions—Madhesi, Dalit, Tharu, Muslim, Women, Indigenous Nationalities, and Inclusive—three have just the chair and one a member, five years after the promulgation of a federal republican statute by the constituent assembly.
Prasain said as the cases of women rights violations are increasing, the National Women Commission could have played a significant role in providing justice for the victims of rape and violence. The Dalit Commission’s role also would have been important, as reports of discrimination and violence against the Dalit community have increased.
Other constitutional commissions include the Election Commission, the Commission for Investigation of Abuse of Authority, Language Commission, Natural Resources Commission and Fiscal Commission.
According to experts, the motive of the constitutional commissions is to make the government accountable towards implementing the charter and maintaining the rule of law. The government becomes unbridled in their absence, they say.
Oli, on the other hand, has been trying to use the appointments in constitutional bodies as a bargaining tool with rival factions in his party and with the opposition.
Oli and the opposition leader Sher Bahadur Deuba, a member of the council, have had several meetings to negotiate on the sharing of the spoils. Deuba wants a share for his party, Nepali Congress, in all the commissions with particular focus on the anti-corruption commission and the Election Commission.
Appointment in the constitutional bodies based on consensus within the party was one of the suggestions made by a task force the ruling Nepal Communist Party (NCP) assigned to suggest ways to resolve differences between its top leaders.
“The way the Oli government is functioning shows it is happy to see the human rights commission become headless so that it can misuse its authority more freely,” said Acharya. “This is worrying.”