Constitutional Council should be held above partisan interests, analysts sayExperts say dozens of constitutional body vacancies give the council an opportunity to ensure proportional representation while recommending candidates.
Prime Minister KP Sharma Oli on Thursday called a meeting of the Constitutional Council for Sunday after holding several rounds of negotiations with Nepali Congress President Sher Bahadur Deuba, who is a member of the council as the leader of the main opposition.
The two held a meeting even on Friday to discuss the appointments at a number of constitutional commissions.
But with Debua announcing on Saturday that he won’t be attending the meeting, Sunday’s meeting is going to be postponed. The Constitutional Council cannot convene a meeting in the absence of the leader of the main opposition. On top of that, for the meeting to convene, at least four members must be present besides the prime minister, who chairs the council.
Deuba has said he won’t attend the meeting because it would give a negative message as it is holding a mass demonstration against the government a day later.
“Participating in Sunday's meeting is not feasible for the party president [Deuba]. He will participate whenever the meeting is called next time,” Ramesh Lekhak, a Nepali Congress leader, told the Post.
Analysts, however, say the Congress party’s statement that the participation of its chief in the meeting “might send a negative” message itself tells how the Constitutional Council is undermined by the parties.
No meeting of the Constitutional Council has been held since March last year, even as dozens of constitutional positions remain vacant.
Though Oli in October and November last year had called the council’s meetings three times, Deuba boycotted them owing to the political wrangling over power-sharing.
Analysts say if not on Sunday, the meeting now will be held anytime soon, as there seems to be some kind of a ‘deal’ between Oli and Deuba.
“It is clear that the meeting was called after negotiations yielded positive results,” Daman Nath Dhungana, former Speaker of the House of Representatives and a civil society leader, told the Post. “Only the party sympathisers have chances to lead the constitutional bodies when appointments are based on political sharing. This is completely against the spirit of the statute.”
He said the composition of the council, which has the representation of all the organs of the state in addition to the leader of the opposition, was designed to ensure that nominations are done fairly.
The six-member council led by the prime minister 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.
Parliament is yet to elect its deputy Speaker.
Analysts say a decision on appointments as per agreement between Oli and Deuba rather than following the true spirit of the objective of the Constitutional Council will turn it into a rubber stamp.
Dhungana says the constitutional commissions are envisioned to hold the government to account. Therefore, those getting appointed must be capable and have a high level of integrity who follow the constitutional provisions in letter and spirit.
“You cannot expect people handpicked by the prime minister and the leader of the opposition to maintain the dignity of the commissions,” he said. “They will only weaken them.”
Experts on constitutional affairs say making decisions through the council without electing the deputy Speaker, who also is a member of the council, is not justifiable because the council’s decisions are expected to be done unanimously.
Clause 6 of the Constitutional Council Act says each matter in the council’s meeting needs to be decided unanimously. A decision on the majority basis can be taken but only from the subsequent meeting after attempts at consensus fails.
Bipin Adhikari, a constitutional lawyer and former dean of Kathmandu University School of Law, said the very provision to make the decision unanimously is breached when the council’s meeting is held without the election of the deputy Speaker.
The position of the deputy Speaker, which traditionally goes to the opposition, has been vacant since Shiva Maya Tumbahangphe resigned in January.
“The main opposition would have raised the issue if Oli called the meeting without consensus,” Adhikari told the Post. “As Oli and Deuba seem to have a deal, the Congress is not concerned about it.”
As many as 45 positions are vacant at 13 constitutional commissions.
While all the five positions including chairperson are vacant in National Human Rights Commission, Women Commission, Dalit Commission, Indigenous Nationalities Commission and Inclusive Commissions, others either don’t have chairpersons or members. For instance, three positions including Chief Commissioner are vacant in the Commission for Investigation of Abuse of Authority while Election Commission lacks two commissioners.
Senior advocate Chandra Kant Gyawali, who specialises on constitutional law, said commissions cannot perform their constitutional responsibility when their leadership is appointed after negotiations between the executive head and the leader of the main opposition.
“The constitutional commissions too have a role to play in holding the executive to account,” he told the Post. “However, over the years such constitutional commissions haven’t been able to perform their responsibility as appointments are being made on political sharing.”
The experts say Nabin Ghimire, immediate past chief of the constitutional anti-graft body, was criticised for turning a blind eye to the corruption charges against the government and the people close to the executive because he was considered close to the Nepal Communist Party (NCP).
Senior advocate Bhimarjun Acharya, who also specialises on constitutional law, says the people will gradually lose faith in these commissions if proximity to the party and the leaders prevails over capability and competence during the appointment process.
“Those appointed by the grace of Oli or Deuba will be loyal to them, not to the institution,” Acharya told the Post. “The parties have turned the commissions into agencies to dole out appointments to people close to them.”
The experts say never before were so many positions vacant in the constitutional bodies and this gives the council an opportunity to make the recommendations adhering to proportional representation of Nepal’s diverse population.
“This is an opportunity to set an example by ensuring all the communities have proportional representation in constitutional bodies,” said Adhikari. “Ensuring representations is not possible when there are fewer vacancies to fill.”
Article 42 of the constitution makes it mandatory for the government to ensure proportional representation of all communities in the state machinery.
Appointments to the constitutional commissions don’t have proportional representation so far. For instance, among five members of the National Human Rights Commission, except Mohna Ansari, all others belonged to the Brahmin/Chhetri community. The Parliamentary Hearing Committee has often raised the issue. It has decided to summon the prime minister to ask why the constitutional provision of proportional representation is not being followed while recommending candidates.