While a case related to the controversial amendment to the Constitutional Council Act in December is at the Supreme Court, the positions of the chair and members of the Public Service Commission, the constitutional body mandated to recruit employees in the bureaucracy, government-owned companies, security agencies and other federal offices remain vacant.

With the retirement of the chair Umesh Prasad Mainali and members Brinda Hada, Ashok Jha, Brahmadev Yadav and Krishna Jha last week, the recruitment of essential staff to the commission is on hold.

But the Constitutional Council is not in a position to make appointments immediately.

In December, Prime Minister KP Sharma Oli’s Cabinet amended the Constitutional Council Act (Functions, Duties and Procedures) 2010 through an ordinance and it is now in Parliament for approval.

But it has not yet been put to vote as the opposition parties—Nepali Congress and the Janata Samajbadi Party—are against the amendment to the Act.

“Our opposition [to the amendment] continues,” Janata Samajbadi Party lawmaker Laxman Lal Karna told the Post. “We have also not heard anything from the government side.”

According to legal and constitutional experts, if the ordinance tabled in the House failed to get authenticated within 60 days, the ordinance will be void.

Besides, two separate cases have been filed in the Supreme Court against the amendment.

As per the amendment, the Council can hold its meeting in the presence of the majority of its members to make the recommendations to the President for appointments in constitutional bodies whereas the previous provisions of Act stated that five of the six members must be present for the meeting to convene.

Following the amendment in December, the Council met with Prime Minister Oli as chair, and Chief Justice Cholendra Shumsher Rana and National Assembly Chairman Ganesh Timilsina as its members. The leader of the opposition and Nepali Congress President Sher Bahadur Deuba and Speaker of the House of Representatives Agni Sapkota were not present at the meeting. Since there is no deputy Speaker there are only five members in the Council.

The meeting recommended about three dozen officials for several constitutional bodies. These appointments have been challenged in court including by Speaker Sapkota.

“At a time when the row over Constitutional Council Act continues, on what moral grounds will the Speaker and the opposition party leader take part in the meeting of the Council until there is a new agreement,” outgoing chair of the commission Mainali told the Post. “There should be a political agreement on the Constitutional Council Act. Otherwise, I see a prolonged crisis in the appointment process in constitutional bodies.”

Of special concern for Mainali is the positions vacant at the Public Service Commission.

“The PSC cannot be run by bureaucrats,” said Mainali. “Bureaucrats cannot make recommendations for promotion, they cannot hold interviews in senior posts and conduct the exams.”

According to him, the commission conducts over 30,000 different kinds of examinations for recruiting different levels of civil servants, army, police, corporate and other federal offices.

Meanwhile, since the issue of the Constitutional Council is pending in the Supreme Court and Parliament, experts in the field of constitutional affairs say appointments made on December 15 by the Constitutional Council may be scrapped, experts said.

“If Parliament passes the ordinance bill within 60 days of its registration, then the ordinance becomes the law but if that fails, the ordinance will be void and those appointments made after the ordinance scrapped,” Chandra Kant Gyawali, an expert on constitutional affairs, told the Post.

“The Supreme Court can also issue a ruling to the government calling repeated attempts to introduce the same ordinance bypassing Parliament is fraud on the constitution. If the ordinance comes repeatedly on the same subject and theme bypassing Parliament is a malafide intention. The government has made mistakes. It should table an amendment bill, instead of the ordinance in the House.”

A secretary at the Prime Minister’s Office said there are no preparations right now to hold a meeting of the council. The Prime Minister’s Office acts as the secretariat of the Constitutional Council and it maintains the roster of potential candidates for various constitutional bodies.

“The PSC is not like other constitutional bodies,” the secretary told the Post on condition of anonymity. “If its work is halted in the absence of office bearers, recruitments for civil service will be pushed back, that in security agencies, corporations and other government organisations will be halted or deferred. Therefore, positions in the PSC should be fulfilled at the earliest.”

As per Article 242 of the constitution, at least 50 percent of the total number of members of the Public Service Commission shall be appointed from amongst the persons who have worked for 20 or more years in any government service, and the rest of the members shall be appointed from amongst persons of reputation after having done research, investigation, teaching or any other significant work in the field of science, technology, art, literature, law, public administration, sociology or in other spheres of national life.

The commission has a chair and four members.

Despite the uncertainty over the next meeting of the Constitutional Council, a number of former bureaucrats and incumbent ones have started lobbying for posts in the Public Service Commission.

According to three different sources privy to information regarding aspirants, secretaries like Sishir Kumar Dhungana (Finance), Madhusudan Adhikari (Irrigation), Bishow Nath Oli (Forest and Environment), Yam Kumari Khatiwada (Women and Children) as well as former secretaries Chandra Ghimire, Kedar Bahadur Adhikari, Rajan Khanal, Bishnu Lamsal, Rajiv Gautam, Mohan Krishna Sapkota and Gajendra Thakur are vying for the posts of its chair or members.

Subas Nembang, deputy Parliamentary Party leader of the CPN-UML, said since the Supreme Court did not issue a stay order against the case, the government can move ahead with the existing provision.

“Since I am not part of the government, I cannot say anything on the behalf of the government,” Nembang told the Post. “But since the Supreme Court did not issue a stay order, it means the government can move ahead with the appointments. If Parliament fails to authenticate the ordinance by 60 days after its registration in the House, the ordinance will be void. Then again it is up to the government.”

Karna of the Samajbadi Party said they have not heard anything from the government in this regard.

“Any delay in filling the PSC positions would push back the entire recruitment drive as we had to push back around 6,000 additional recruitments due to Covid-19,” said Mainali, the outgoing chair.

“Delay in appointments will overstretch the overall recruitment process. Political parties should soon arrive at an agreement to fix the issue.”