Ordinance and constitutional body recommendations challenged in courtWrit petitioners argue that the ordinance over functioning of Constitutional Council was ‘unconstitutional’ while defenders say there was no choice but to amend the law.
With the writ petitions against the dissolution of the House of Representatives getting priority in the Supreme Court, two writ petitions against the controversial ordinance on the working procedure of the Constitutional Council, which recommends candidates for appointment to constitutional commissions, and against the recommendations based on the ordinance, have taken a backseat and are now scheduled to be heard on Friday, January 1.
In their petitions filed on December 16 and December 21, the petitioners have argued that since both the ordinance and the subsequent decision of the constitutional council based on it are unconstitutional and illegal, both must be scrapped.
“As the ordinance violated the constitutional provision and the existing law, I registered the writ at the Supreme Court,” said advocate Om Praskash Aryal, who petitioned against the ordinance and the decision.
On December 15, President Bidya Devi Bhandari issued an ordinance to amend the Constitutional Council (Functions, Duties, Power and Procedure) Act-2010 such that, as per the amendment the necessary quorum for holding a meeting of the council would be a simple majority of the existing members changing the earlier provision that five of the six members needed to be present including the prime minister, the chair of the council.
The prime minister, the chief justice, the Speaker of the House of Representatives, the chair of the National Assembly, the deputy Speaker of the House of Representatives and the leader of the main opposition in Parliament are the members of the council. The position of deputy Speaker in the dissolved House of Representatives had been vacant since Shiva Maya Tumbahangphe resigned on January 20 as deputy Speaker.
This amendment effectively allowed just three members of the council to recommend the names for constitutional appointments.
Based on the ordinance, the council recommended 38 names for 45 vacancies in several constitutional bodies, including the Commission for Investigation of Abuse of Authority, the same day the law was amended. The names were sent to the Parliamentary Secretariat for hearing on December 18, two days before the lower house was dissolved.
Article 292 of the constitution provisions parliamentary hearing of the judges to be appointed by the judicial council and those to be appointed to constitutional bodies by the Constitutional Council. With the President dissolving the House on December 20 as per the recommendation of the Cabinet, parliamentary hearing cannot take place now.
A 15-member joint committee representing both Houses of the federal parliament is formed to conduct the hearing as per the Article 292 (2) of the constitution.
As per Rule 26 (2) of the Joint Parliamentary Meeting Regulation, there would be no obstruction for the recommended people to assume office in the constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the letter from the council.
“I have argued that the provision of automatic appointment is against the spirit of the constitution,” Samrit Kharel, a student of law who filed the second writ at the Supreme Court, told the Post.
Most of the constitutional commissions have long been without all office bearers. For example, the National Human Rights Commission has been without any commissioners after their term ended on October 18.
The anti-corruption commission has been without the chief commissioner since Nabin Ghimire retired in mid-September.
There are 11 other constitutional commissions, most of them mandated to protect the rights of minorities as well as women. Most of them have not had all five office bearers since the promulgation of the constitution in 2015.
With parliamentary hearing not possible, those who have been recommended for various positions could assume office automatically after 45 days.
But this provision has been challenged.
Aryal states in his writ that section 2 (1) of the ordinance, which redefines the quorum to hold a meeting of the Constitutional Council as a simple majority of the existing council members, violates the basic principle of the constitution as envisioned by Article 284 (1), basic norms of constitutionalism, constitutional control and balance, and principle of constitutional governance, fairness, transparency and accountability.
Aryal argues that Article 284 (1) of the constitution does not make the vote of the prime minister indispensable for the decision. But Section 2 (2) of the ordinance approved on December 15 makes the vote of the prime minister mandatory in decision-making and that is against the constitution.
“The prime minister has not only committed a fraud on the constitution by introducing the ordinance but also attempted to take absolute control of constitutional bodies by appointing the people of his choice,” the petitioner argues. “This could ultimately invite questions over the legitimacy of the constitutional system.”
Detractors claim that the recommended names are mostly in the interest of Prime Minister KP Sharma Oli, such as Prem Kumar Rai for the post of chief commissioner at the anti-graft body.
Senior advocate Chandra Kanta Gyawali, an expert on constitutional law, said the “immature” ordinance seeks to indirectly amend the constitution by revising the existing law.
“Nowhere in the world can an ordinance amend the existing law,” he told the Post. “The ordinance is introduced only when there is the lack of any law.”
According to him, the same ordinance being introduced time and again to bypass Parliament is considered fraud on the constitution.
In April, the government had introduced the ordinance with the same provision but it was withdrawn after a strong protest within the ruling Nepal Communist Party and by the opposition parties.
Both Aryal and Gyawali argue that the recommendation made by the council based on the ordinance would turn void because of, first, the ‘unconstitutionality’ of the ordinance and, second, non-possibility of parliamentary hearing.
The 45-day deadline for the hearing committee to decide applies only when there is the presence of the parliamentary hearing committee, they argue.
“At least the process of parliamentary hearing should have begun after the formation of a hearing committee if they are to assume office automatically after 45 days,” said Gyawali.
“Automatic appointment of them can only happen where there is no regard for the constitution and the law and only in an authoritarian political system.”
But advocate Ramesh Badal said the ordinance was introduced to ensure implementation of the constitution as two members of the Constitutional Council failed to attend the meeting “repeatedly” and the council failed to take a decision.
Speaker Agni Prasad Sapkota did not attend the council’s meeting on December 15. On December 13, the meeting of the council was postponed after main opposition leader Sher Bahadur Deuba refused to attend it citing a protest programme of his Nepali Congress party against the government the next day.
“The ordinance does not bar the leader of the opposition and any other member from participating in the meeting. Therefore, the ordinance is fully constitutional,” said Badal. “If a person refuses to fulfil his or her constitutional duty, such a move is necessary to make the institutions provisioned by the constitution functional and it is very much a constitutional move.”
Badal also claimed that those recommended to fill the vacant posts in constitutional bodies would be automatically appointed after 45 days since the recommendation has reached the Parliament Secretariat for hearing.
“Unless the court scraps the recommendations or potential revival of the House of Representatives paves the way for parliamentary hearing, they will be automatically appointed after 45 days,” he said.
The three members who were present at the Constitutional Council meeting that nominated the candidates were the prime minister, Chief Justice Cholendra Shumsher Rana and National Assembly Chairman Ganesh Timilsina, an Oli ally.
According to senior advocate Shambhu Thapa, the involvement of the chief justice in the decision made by the council following the ordinance has raised concerns whether the court would be able to take an independent decision on the writ against the ordinance and the subsequent decision of the council.
“If you go to the court against the decision of the council made in the presence of the chief justice, can the court ensure that it is independent?” he asked, talking to the Post.