Nepal's Constitutional Council at a Crossroads: Balancing Political Bargaining with Youth Demands for Meritocracy

Nepal's current political landscape is navigating a strange paradox. On one hand, there is palpable frustration from the Gen Z generation on the streets, vehemently demanding transparency in every state appointment and the principle of the 'right man in the right place.' On the other hand, within the closed rooms of Baluwatar and Singha Durbar, the old game of dividing constitutional body positions through 'quota-sharing' continues. The institution at the center of this game is the Constitutional Council.

The Constitutional Council is not merely a recommending body; it is the backbone of democracy that determines the impartiality of institutions like the Commission for the Investigation of Abuse of Authority (CIAA), the Election Commission, and the Judiciary. However, in recent years, attempts to turn the Council into a shadow of the executive have seriously questioned its very justification.

Historical Deviation and Legal Crisis

Article 284 of the Nepali Constitution establishes the Constitutional Council. Its core philosophy is that appointments to the major organs of the state should be free from political influence, ensuring that appointees protect the Constitution rather than any specific party. In practice, however, we have witnessed political parties turning it into a mechanism for power-sharing.

Especially in the years 077 and 078 BS, the then-government amended the Constitutional Council Act through ordinances, fundamentally changing the provision regarding the quorum. This arrangement, which allowed decisions to be made with the presence of only 3 out of 6 members (including the chairperson), became a 'coup' in Nepal's constitutional history. The appointments of 52 officials, made without informing the leader of the opposition party or the Speaker, remain controversial to this day.

In this context, the Supreme Court's Constitutional Bench has placed special emphasis on procedural purity and constitutional morality. While the court has upheld some decisions to avert a constitutional vacuum, it has drawn a clear line for the future. Any process for constitutional appointments without the mandatory consent of the minority representation and the judiciary runs contrary to democratic values.

The Voice of Changing Consciousness

Today's Nepal is not like the Nepal of 046 or 063 BS. Today's generation, whom we call Gen Z, is unwilling to compromise on the right to information and transparency. Looking at the streets of Kathmandu to the trending topics on social media, the youth are clearly stating—we will not accept the helplessness of our ancestors.

This generation understands the politics of 'setting' (backroom deals). When a former bureaucrat or political cadre is hastily appointed to a constitutional body, this generation begins to dig into their past footprints. The awakening of the youth sends a clear message to the upcoming government—the days of running the state by appointing cronies are over. 

If the new government fails to address this anger, street protests could shake the foundations of power at any moment. Strict reforms to the quorum of the Council are necessary to prevent it from becoming arbitrary. The following points must become immutable in the next amended act.

First, Minimum Attendance. There must be a provision that a meeting cannot be held without the presence of at least five out of the six members of the Council. This prevents the trend of suppressing the minority in the name of majority rule.

Second, Mandatory Participation of the Opposition and Judiciary. Even if the quorum of five members is met, the mandatory presence of the Leader of the Opposition and a former Chief Justice must be required. A legal provision should stipulate that any decision made in the absence of even one of these two individuals is invalid. This forces the Prime Minister to engage in dialogue with all sides and seek consensus.

Structural Restructuring

The current Council looks purely like a political club. To make it professional and neutral, former office bearers should be included. The proposed new model should include provisions to appoint former Chairpersons of the Public Service Commission, former Chief Justices, former Chief Election Commissioners, and former Chiefs of the Commission for the Investigation of Abuse of Authority as members. 

Mandating these members guarantees meritocracy. It makes it easier to verify legal and moral integrity. It helps maintain the balance of democratic institutions. Furthermore, it provides deep insight into issues of anti-corruption and morality. 

Two-Year Cooling-Off Period

Nepal's biggest problem is officials making 'deals' for their next position while still in office. For instance, a secretary might curry favor with the Prime Minister before retirement hoping to secure an appointment in a commission the very next day. To stop this, a mandatory two-year cooling-off period must be implemented. 

It must be stipulated that any government official, upon retirement, is ineligible for any constitutional appointment or as an expert member of the Council for two years. This helps bureaucrats work impartially during their tenure and remain free from the temptation of future rewards. 

Management of the Roster System

To make the appointment process transparent and competitive, first, the Constitutional Council should develop a mechanism to call for applications or nominations in national media at least three months before a vacancy arises. Second, the received applications should be evaluated based on qualifications, experience, published works, professional achievements, and contribution to public service, and a list of the top candidates should be prepared and made public. 

Third, the Parliamentary Hearing Committee and the Constitutional Council should jointly interview candidates from the long list, publish a list of the top three names, and allow the general public to file complaints or grievances regarding such names. During this period, information regarding the candidate's financial background, criminal record, moral character, and professional competence can be sought. 

Fourth, a mechanism should be developed for the Secretariat of the Constitutional Council to investigate the received complaints and, if necessary, seek clarification from the candidate. Finally, such individuals should be recommended and assigned responsibilities. 

The Responsibility of the New Government

The government to be formed in Nepal has a historic opportunity. Will they engage in the game of merely sustaining the government, or will they reform the state institutions? If the government only talks about good governance but repeats the old quota-sharing system in the Constitutional Council, the youth rebellion will not grant them peace. 

The new government must amend the Constitutional Council Act in its first month to incorporate the provisions mentioned above. This is not in the interest of any single party; it is an investment in the future of the entire nation. 

What Will We Gain?

If the reforms mentioned above are implemented, the Commission for the Investigation of Abuse of Authority will dare to catch not just the small fish, but also the big political fish. The Election Commission will play a role in ensuring free and fair elections without anyone's pressure. 

The Public Service Commission will further strengthen its legacy of impartiality. When employees are selected based on merit and competence, it will contribute to good governance and development. The National Human Rights Commission will succeed in preserving its 'A' grade internationally. An independent and effective Human Rights Commission will brighten Nepal's image in the international community. 

In addition, all other constitutional commissions, including the National Women's Commission, National Inclusion Commission, Madhesi Commission, Tharu Commission, and Muslim Commission, will be able to work effectively in their respective areas. 

Potential Risks

The Constitutional Council is not a venue for political bargaining. It is the sacred temple of the state, from where the stream of justice and good governance should flow. A 5/6 quorum, mandatory presence of the opposition and judiciary, inclusion of experts, and a two-year cooling-off period—these are not just words; they are the life-saving elixir to save Nepal's democracy. 

However, there are some challenges in implementing these reforms. For instance, old political parties might resist this issue. Some constitutional obstacles might appear. The challenge might be ensuring that the expert members themselves are impartial and qualified. Transparency and procedural adherence might consume more time and resources. But these challenges are minor when compared to the value of good governance and democracy. 

Will the upcoming government establish a strong system for the future, or will it continue to wallow in the mud of quota-sharing? The Gen Z generation is eagerly awaiting the answer to this question. Let us imagine a Nepal where individuals appointed to constitutional bodies are not party workers, but servants of the nation. 

Let the basis of appointment be merit and competence, not bargaining. Let the Constitutional Council play the role of the guardian of the Constitution, not the crutch of political parties. The responsibility to realize this dream belongs to all of us—politicians, citizens, and the youth generation.

The cycle of quota-sharing must be broken; the return of merit must happen. Because only when good institutions are built can a good Nepal emerge. And a good Nepal is the dream of us all.