Constitutional Bodies in Nepal Face Prolonged Vacancies Due to Incomplete Constitutional Council

Kathmandu. Sixteen positions, including five chairpersons across various constitutional commissions, have remained vacant for an extended period. The inability to fill these vacancies stems from the Constitutional Council not being fully constituted.

Currently, two positions, including the chairperson, are vacant at the Election Commission. One member position is vacant at the National Human Rights Commission. Similarly, two positions, including the chairperson, are vacant at the Muslim Commission. The National Inclusion Commission has two vacancies including the chairperson, while the Commission for the Investigation of Abuse of Authority has one vacancy.

The Tharu Commission and the Madhesi Commission each have two vacancies, including their respective chairpersons. The National Natural Resources and Fiscal Commission has three vacancies, including the chairperson. The Women's Commission has one member position vacant.
Chairpersons Balananda Paudel of the National Natural Resources and Fiscal Commission, Bishnu Prasad Chaudhary of the Tharu Commission, Bijay Kumar Datta of the Madhesi Commission, Shamim Miya Ansari of the Muslim Commission, and Chief Election Commissioner Dinesh Thapaliya have all retired after completing their six-year terms.

Article 284 (3) of the Constitution mandates that the Constitutional Council must recommend names for appointments to constitutional bodies one month before the positions become vacant. However, with the Constitutional Council incomplete, it is unclear when the appointment process for these constitutional commissions will proceed.

Despite the formation of the government, the Constitutional Council remains incomplete. Appointments to these commissions are made by the Council. The main opposition party in Parliament, the Nepali Congress, has yet to select its parliamentary party leader, which has prevented the Council from achieving full membership.

The six-member Constitutional Council is chaired by the Prime Minister. Its members include the Chief Justice, the Speaker of the House of Representatives, the Chairperson of the National Assembly, the Leader of the Opposition in the House of Representatives, and the Deputy Speaker.

Following the House of Representatives elections, Prime Minister Balendra Shah (Balen), Speaker DP Aryal, and Deputy Speaker Ruby Kumari Thakur have assumed their roles. However, the position of the Leader of the Opposition remains vacant as the Nepali Congress has not yet selected its parliamentary party leader, and the Chief Justice position has remained unfilled since the retirement of the previous incumbent on 2082 Chaitra 18 due to the 65-year age limit.

Commissions Remained Vacant Due to Ruling Party Interests

The previous government was responsible for appointing officials to various constitutional commissions, but then-Prime Minister KP Sharma Oli issued ordinances in Mangsir 2077 and Baisakh 2078 to appoint 52 officials to these bodies. The government twice amended the quorum and decision-making provisions in Section 6 of the Constitutional Council (Functions, Duties, Powers, and Procedures) Act, 2066, through ordinances.

The Act originally required the presence of the chairperson and at least four members for a quorum, with decisions made by consensus. However, the ordinance introduced in Mangsir 2077 allowed meetings to be held with the chairperson and a majority of the then-serving members, with decisions made by a majority of those present.

Repeated amendments to the Council Act via ordinances impacted the appointment of officials to various constitutional commissions. Advocate Kirtinath Sharma Paudel states that they had to file a writ petition in the Supreme Court after the then-Oli government made these 52 appointments in an unconstitutional manner. He notes that the court's decision to uphold the government's actions led to long-term problems in appointing commission officials.

Paudel believes that the ruling parties have caused these issues by manipulating constitutional positions to suit their own interests.

Delays in Appointing Chief Justice

With the Constitutional Council incomplete, the Supreme Court is operating under an Acting Chief Justice. Following the retirement of Chief Justice Prakashman Singh Raut on 2082 Chaitra 18 due to the 65-year age limit, Acting Chief Justice Sapana Pradhan Malla has taken charge. In Falgun, the Judicial Council recommended six names for the position of Chief Justice of the Supreme Court.

The names recommended to lead the Supreme Court include senior-most judge Sapana Pradhan Malla, along with Kumar Regmi, Hari Prasad Phuyal, Dr. Manoj Kumar Sharma, Dr. Nahakul Subedi, and Til Prasad Shrestha. Article 129 (3) of the Constitution states that a person who has served as a Supreme Court judge for at least three years is eligible for appointment as Chief Justice.

The Council recommended all judges who have completed the three-year tenure as per the sub-article. In the past, the Constitutional Council has recommended appointments for Chief Justice based on seniority from the names sent. Article 129 of the Constitution outlines the provisions regarding the appointment and qualifications of the Chief Justice and judges of the Supreme Court of Nepal.

Sub-article 2 of the same article states that the Chief Justice shall be appointed by the President upon the recommendation of the Constitutional Council, and other Supreme Court judges shall be appointed upon the recommendation of the Judicial Council. Previously, the Constitutional Council would send the name of the judge at the top of the seniority list to the Parliamentary Hearing Committee. Once approved by the hearing committee, the name was sent to the President's Office for appointment as Chief Justice.

What is the Ruling Party's Presence in the Constitutional Council?

In the Shah-led government, which holds a comfortable majority in the House of Representatives, the Prime Minister (Council Chair) and the Speaker are currently from the ruling side. Deputy Speaker Ruby Kumari Thakur, who was a candidate from the Labour Culture Party, represents the opposition.

Since the Minister of Law is a member for recommendations regarding commission officials and the Chief Justice, the ruling side would have three members. Beyond that, the Council includes the National Assembly Chairperson, the Leader of the Opposition, and the Deputy Speaker.

According to the current provisions of the Constitutional Council Act, decisions are made by consensus in the first meeting and by majority in subsequent meetings. Section 6 of the Constitutional Council (Functions, Duties, Powers, and Procedures) Act mentions the Council meetings. Sub-article (3) of Section 6 states that a quorum is met if the chairperson and at least four other members are present. Sub-article 5 of the same section states that decisions on every subject presented in the meeting shall be made by consensus, and sub-article 6 states that if consensus cannot be reached, no decision can be made on that subject. However, sub-article 7 states that if consensus cannot be reached, another meeting can be called, and if consensus is still not reached, the decision can be made by a majority of all members of the Council.

To achieve a majority in the Constitutional Council, at least four members must be present. To meet the quorum, the Prime Minister and four other members must be present.