Politicians influencing decisions of constitutional bodies comes to light once againAs a minister implicitly admits that the Election Commission was ‘pressured’, analysts point out that independent bodies are increasingly being brought under the control of the executive.
Foreign Minister Pradeep Gyawali indicated during a telephone interview with Kantipur Television on Sunday evening that certain influence was exerted on the Election Commission to get the Nepal Commuist Party (NCP) as the name for the party created after the merger between CPN-UML and Communist Party of Nepal (Maoist Centre) in May 2018.
“The Election Commission had warned us about the name. But in the euphoria of party unity, we chose the name even though it was an unusual name with the main name of the party and the abbreviation in brackets,” Gyawali said in the interview.
“Let’s not say we forced a decision but it is true that we undermined the comments raised regarding the name at that time.”
By using the word ‘pressure’, the implication is clear that the ruling party had influenced the Election Commission to give it the name despite another party being registered in that name already. This in turn has once again exposed how the constitutional bodies are failing to perform their duties independently, observers say.
“The commission’s decision regarding allocating the name Nepal Communist Party (NCP) three years ago and its indecision regarding the dispute in the same party suggest that our constitutional bodies are failing to perform their duty independently,” said Surya Nath Upadhyay, former chief commissioner of the Commission for Investigation of Abuse of Authority.
Co-chairs KP Sharma Oli, also the prime minister, and Puspa Kamal Dahal had got their party registered as Nepal Communist Party (NCP) in June 2018.
According to Section 6 (1E) of the Political Parties Act-2017, a new party cannot be registered if the proposed name or its election symbol matches those of a party already registered.
Pointing out the same provision, the Supreme Court on Sunday scrapped the Nepal Communist Party (NCP) and instead revived the CPN-UML and the Communist Party of Nepal (Maoist Centre) from the pre-merger days.
It turns out that initially there was no unanimity among the election commissioners about granting the name to the newly merged party in 2018.
“There was a different opinion among the commissioners on whether to allocate the same name as an already registered party to the newly merged party but the decision was taken after the majority of commissioners stood in favour,” a former senior official at the commission told the Post on condition of anonymity.
“When a majority of commissioners stand for one opinion, others usually agree to the decision of the majority despite having differing views.”
Another former official said, also on condition of anonymity, that the influence of the power on the commission was clearly visible as it decided to let the newly merged party pick the name Nepal Communist Party (NCP), with NCP within brackets, to differentiate it from Rishi Kattel’s Nepal Communist Party, despite clear legal provisions against such a decision.
When the name was given to Oli and Dahal, the unified party then became the largest party in Parliament commanding a near two-thirds majority after an electoral alliance between the two constituents had swept federal and provincial elections.
But the court’s Sunday verdict says the Oli and Dahal-led party continued to use Kattel party’s name, particularly in its statute.
The alleged pressure put on the election body at that time has now come back to haunt not only the Dahal-Madhav Kumar Nepal of the invalidated Nepal Communist Party (NCP) but also Prime Minister Oli since if Dahal and his Maoist Centre decide to withdraw support to him, his government will be a minority one.
In the now revived CPN-UML, Nepal, on the other hand, is in the minority in terms of the number of lawmakers who support him and also in the Central Committee of pre-merger days. The Dahal-Nepal faction of the invalidated Nepal Communist Party had been claiming that they had the support of the majority of the 173 lawmakers from the party in the 275-member House of Representatives as well as in that party’s 441-member Central Committee.
“The snatching of the name of another party by influencing the Election Commission has been like falling into the hole dug by themselves for the defunct Nepal Communist Party leaders,” said Upadhyay.
The commission has also been facing charges of being under the influence of Prime Minister Oli after taking no decision regarding the legitimacy dispute in the now scrapped Nepal Communist Party (NCP). The Dahal-Nepal faction had been claiming legitimacy for the party saying it had the support of the majority of Central Committee members. But with the Supreme Court decision, it has become a moot point.
Constitutional bodies are considered independent because legally they are not under the control of the executive. But, experts and analysts say that they have come under the influence of executive authority time and again and have bent to the will of the executive.
“Even though office bearers in the constitutional bodies are being appointed based on the interests of some political leaders and the parties, once appointed, they are accountable not to those who appointed them but to the constitution and the nation,” said Khem Raj Regmi, former president of Transparency International, Nepal, the anti-corruption advocacy group.
“But the Election Commission failed to withstand the pressure of those who appointed its office bearers. Even when the now scrapped parliamentary election was nearing, the commission didn’t rush to settle the dispute in the Nepal Communist Party (NCP) to benefit a certain faction of this party.”
The commission is not the only constitutional body allegedly influenced by the executive.
The Commission for Investigation of Abuse of Authority is also facing the charge of coming under the influence of the executive and top political leadership.
Over the last few years, a number of major corruption scandals took place such as the leasing out of precious government land plots and buildings to Yeti Holdings at low price, procurement of a riverside area by the Nepal Oil Corporation, Baluwatar land scam, and an alleged graft deal of Rs700 million between former minister Gokul Baskota, an Oli ally, and an agent of a foreign security printing company, among others.
But the anti-graft body has suspended investigation into some of the cases while even in the case where it filed a corruption case at the Special Court, it has deliberately excluded some powerful figures, including politicians and their kin, from the list of people implicated.
For example, in the case of the Baluwatar land scam, some people buying land there were made defendants while Nabin Poudel, son of Finance Minister Bishnu Poudel, and Kumar Regmi, a sitting judge at the Supreme Court, were not made defendants for buying land at Baluwatar in the same way as others.
Justice Regmi is one of the two judges who on Sunday invalidated Nepal Communist Party (NCP), a decision which appears to have benefited Oli politically.
“As ex-minister Baskota is the right hand man of Prime Minister Oli, the anti-graft body also didn’t initiate investigation into the apparent graft case,” said Regmi, the former president of Transparency International, Nepal.
Analysts say that the Oli administration has been more blatantly taking control of constitutional bodies than any of his predecessors.
For example, Chief Election Commissioner Dinesh Thapaliya was recommended for the post in March 2019 after being asked to resign as a government secretary. In April that year, he was appointed the head of the election body.
Many believe he was appointed to the post at the behest of Oli.
Inaction of the commission under his leadership regarding the legitimacy dispute in the now defunct Nepal Commuist Party (NCP) despite strong criticism from different quarters is aimed at pleasing Oli, analysts said.
The Constitutional Council led by Oli made appointments in many constitutional bodies secretly by introducing an ordinance in such a way that those recommended avoid parliamentary hearing, a mandatory constitutional requirement. On December 15 last year, a meeting of the Constitutional Council had recommended 38 names to fill the vacancies in several constitutional bodies, including the Commission for Investigation of Abuse of Authority.
Only after President Bidya Devi Bhandari dissolved the now reinstated House of Representatives on December 20 last year that these recommendations came to light.
“This is guided by an ill intention of controlling vital constitutional bodies so that they wouldn’t perform their duties independently,” said senior advocate Srihari Aryal. “There was no need to introduce the ordinance and to make recommendations for appointments in constitutional bodies secretly.”
Despite legal challenges made against the recommendations at the Supreme Court, President Bhandari in early February appointed the candidates recommended for the constitutional bodies.
According to Upadhyay, the tendency to dominate the state institutions was present even in the past but it has grown in the Oli administration.
One of the major reasons behind such tendency among the political leaders, according to analysts, is the trend of appointing loyalists in the top constitutional posts.
“The Election Commission failed to perform its duty independently and this shows what happens if loyalists rather than capable persons are appointed in constitutional bodies,” said Upadhyay.
But this tendency among politicians is not the only bane for the state of affairs, analysts say.
Even constitutional and legal provisions regarding appointments at constitutional bodies have shortcomings.
“Political figures have a clear majority in both the Constitutional Council and Judicial Council,” said Aryal. “Therefore, you can clearly see the influence of politicians in the appointments made at constitutional bodies and the courts.”
The Judicial Council recommends the names of judges.
He sees the need for a clearly defined criteria for being appointed in these crucial positions.
“A roster of the people qualified for constitutional bodies should be prepared based on clearly defined criteria and a public discussion should be held on the names recommended before making appointments to constitutional bodies,” said Aryal.