How Oli’s actions put heads of lower and upper houses at oddsSpeaker and National Assembly chairman spar over Constitutional Council’s December 15 recommendations, in a brazen display of their partisan allegiance.
A day after Speaker Agni Sapkota sent back recommendations made by the Constitutional Council, National Assembly chair Ganesh Timilsina on Monday reacted to the move, saying that the Speaker had no authority to do so without consulting him.
The chiefs of Nepal’s bicameral legislature are clearly at odds.
Observers say Prime Minister KP Sharma Oli, by dissolving the House of Representatives, has by now dragged all key institutions of the country into controversy—the executive which he heads, the legislature that elected him to the post and the judiciary, which is considered an independent institution.
Oli’s December 20 House dissolution move had an immediate impact on his Nepal Communist Party, which has split into two—with one faction led by him and the other jointly by Pushpa Kamal Dahal and Madhav Kumar Nepal.
Sapkota, a long-time ally of Dahal since the ‘people's war’ days, is believed to have acted at the behest of Dahal. Many say Timilsina’s reaction to Speaker's Sunday move was expected as he owes his allegiance to Oli.
According to analysts, both, however, seem to have failed to play non-partisan roles that the constitution requires of them.
Partisan politics has reached the legislature now, which is not a good sign for parliamentary democracy, which is already under attack from Oli, they say.
“Both the factions of Nepal Communist Party are constantly attacking the constitution,” said Daman Nath Dhungana, a former Speaker. “This is just part of a series of constitutional violations the Nepal Communist Party has been involved in. Now the two factions are in a bid to destroy the constitution both ways—in conduct and compliance.”
The Constitutional Council led by Oli had made recommendations to appoint office bearers at 11 constitutional bodies on December 15, the day he had issued an ordinance on the Constitutional Council Act (Functions, Duties and Procedures) 2010 to amend two provisions on convening the Council meeting and taking decisions.
The ordinance was approved by President Bidya Devi Bhandari almost immediately that day.
The amended provisions meant Oli had effectively made the presence of Speaker and leader of the main opposition unnecessary for convening the meeting and taking decisions.
The Council, headed by Oli, has five members–chief justice, Speaker, National Assembly chair, deputy Speaker and leader of the main opposition.
As per Constitutional Council Act (Functions, Duties and Procedures) 2010, the presence of at least four members was needed, apart from the chair, to convene the Council meeting and in the event of failure to reach a decision by consensus, the next meeting could make its recommendations.
However, Oli, through the ordinance, changed the provisions, which meant the meeting could convene if the majority of members—three—were present and took a decision through the majority.
The December 15 meeting was chaired by Oli and attended by Chief Justice Cholendra Shumsher Rana and National Assembly chair Timilsina.
Sapkota and Sher Bahadur Deuba, leader of the main opposition, did not attend the meeting. Even though Sapkota was elected Speaker in January last year after a long-drawn-out tug-of-war between Oli and Dahal, the House was yet to elect his deputy.
Sapkota’s decision to send the recommendations back to the Secretariat of the Constitutional Council on Sunday came two days before 45 days since the recommendations were registered with the Parliament Secretariat. The recommendations were received by the Parliament Secretariat on December 20, the day Oli dissolved the House.
It is believed to be a tactical move on the part of Sapkota, as Rule 26 (2) of the Joint Parliamentary Meeting Regulations says there would be no obstruction for the recommended people to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the letter from the [Constitutional] Council.
Sapkota’s action could put the recommendations in limbo. According to the statement issued by the Parliament Secretariat on behalf of Sapkota, first, the Speaker was not informed about the December 15 Council meeting, and second, since the House was dissolved, the Parliamentary Hearing Committee also did not exist, and the nominees’ hearing was not possible.
However, Timilsina on Monday said all the decisions of the authority that come to the federal parliament are properties of both the houses.
Timilsina also argued that Sapkota failed to consult with him before deciding to send the recommendations back to the Council Secretariat.
“I would like to inform everyone that there is no involvement of the National Assembly in the wrong process of the Speaker to return the recommendations,” Timilsina said. “I object to the unilateral decision of the Speaker to return the letters violating the existing work procedure regulation when they were duly registered at the secretariat of general secretary of the Federal Parliament and secretary of the Parliamentary Hearing Committee before the House was dissolved.”
Timilsina’s concerns stem from the fact that the parliamentary hearing committee has members from the upper house as well.
In the 15-member hearing committee, 12 members are from the lower house and three from the upper house.
Radheshyam Adhikari, a member of the National Assembly representing the Nepali Congress who is also an advocate, said the chairs of the federal parliament have failed to maintain the dignity of their positions by acting as if they are party members.
Though the Speaker and upper house chair candidates are fielded by the parties, once elected, such individuals must resign from their respective parties.
According to Adhikari, the malafide intention of the prime minister was clear from the outset, as he had sent the Council recommendations for parliamentary hearing knowing that the House would be dissolved.
“What the prime minister has done is a fraud on the constitution,” said Adhikari. “Our constitution does not envisage appointments to constitutional bodies without parliamentary hearing.”
Given that there was a gap of five days between introducing the ordinance and appointments, House dissolution makes it apparent that Oli had made a calculated move for his political gains, according to observers. In doing so, however, he has dragged the hallowed legislature into controversy.
There is widespread speculation that Oli wanted to have “his” people at certain constitutional bodies, including the Commission for Investigation of Abuse of Authority.
Though Timilsina has claimed the Speaker’s move may not affect automatic appointments of the nominees after 45 days as per the constitutional provisions, Dhungana said until writ petitions against the recommendations are heard by the court, no one can be appointed.
As many as two writ petitions have been filed at the Constitutional Bench against the December 15 recommendations. However, the bench has yet to conduct a hearing.
Since January 6, the Constitutional Bench has instead been hearing 13 writ petitions filed against Oli’s House dissolution move.
“As per the judicial propriety, the government should wait at least until the court passes a judgment on the Council’s recommendations and House dissolution,” said Dhungana.
When Nepal’s constitution was being drafted by the Constituent Assembly, drafters discussed at length various aspects, putting in a lot of efforts to ensure provisions that would allow stability and ensure the checks and balances.
The first elections under the new constitution voted Oli to power with a mandate to govern for the full five-year term, something that had not happened in the country’s recent history. But, by dissolving the House, Oli has thrown the country into uncertainty. Constitutional experts say Oli took a step that the constitution did not allow him to.
The constitution also envisioned the parliamentary hearing process to scrutinise the appointees and a well-balanced Constitutional Council to maintain the checks and balances. The constitution guaranteed bicameralism, a principle that requires the consent of two differently constituted chambers of Parliament to make or change laws.
But partisan politics has led to a fight between the heads of the two chambers of the House, which is quite discouraging, say analysts.
According to them, the heads of both the houses should be working in tandem, but they are so guided by their partisan allegiance that it is hurting the spirit of constitution and the parliamentary system.
“This conflict between the heads of two Houses was expected; this is just an aftershock of Oli’s House dissolution,” said Chandra Kanta Gyawali, a senior advocate who specialises on constitutional law. “The Nepal Communist Party dispute is taking a toll on the constitution and the parliamentary system.”
Nepal restored democracy in 1990, but it was attacked by the monarch in 2005. It took yet another movement to usher in the federal republic, but an elected government seems to be in a bid to nip it in the bud, analysts say. Nepali politicians’ and subsequent governments’ failure to strengthen institutions makes democracy vulnerable. According to them, a democracy flourishes in a country where institutions are strengthened.
“But there is a lack of institutional culture in Nepal’s democratic practices,” said Govinda Bandi, a legal expert. “The recent actions by Oli and the dispute in the Nepal Communist Party are having overreaching implications, as democratic institutions are under attack. Only if we can protect our institutions can we save democracy, or else we are doomed.”