Nepal Govt Recommends Constitutional Council Ordinance to President, Sparking Opposition Outrage

Kathmandu. The government led by Balendra (Balen) Shah decided in a cabinet meeting last Monday and recommended to President Ramchandra Paudel to issue the (First Amendment) Ordinance related to the Constitutional Council (Work, Duties, Powers and Procedures), 2082. The recommendation from the government reached the President's Office, Shital Niwas, on Tuesday and is under study, the President's Secretariat informed. The content of the ordinance has not been made public, but opposition parties and stakeholders are angered by the government bringing an ordinance after suddenly postponing the session of the Federal Parliament called by the cabinet itself. To form an opinion on the ordinance, the main opposition party, the Nepali Congress, has called a meeting of opposition parties on Wednesday afternoon. President Paudel has been 'holding' this very ordinance that was recommended for issuance by the interim government led by Sushila Karki. President Paudel had 'held' the (First Amendment) Ordinance related to the Constitutional Council (Work, Duties, Powers and Procedures), recommended for issuance on Mansir 2 by the interim government led by Karki. The ordinance was recommended for issuance by the interim government led by Sushila Karki on Mansir 2. The bill on the same subject, passed by both houses of the Federal Parliament and sent for authentication, was also returned by President Paudel. The then government had registered the (First Amendment) Ordinance related to the Constitutional Council (Work, Duties, Powers and Procedures), 2079 in the House of Representatives on Falgun 12, 2079. This bill was passed by both houses and sent to President Paudel for authentication on Asar 31, 2082. Paudel returned it to the House of Representatives, where the bill originated, on Shrawan 8, with five grounds. Among the 5 grounds cited by President Paudel for returning the bill, point number 4 mentions the opinion that recommendation should be by consensus of the total number of members in the Constitutional Council and decisions should be by at least a majority. 'If, by any chance, consensus cannot be reached, the majority should not be overlooked in any way, and the basis of the majority should be considered the final pillar of decision,' the President wrote in that point, 'The provision in Section 6 of the Act, without any reasonable basis or reason, pointing to a special circumstance, the decision made by the Council with only the members present when at least the chairperson and the members in office are present, as per the amendment bill presented, will be understood as automatically a minority, therefore, it is necessary to reconsider the bill with such a provision.' These were the 5 grounds mentioned by President Paudel when returning the bill: 1. Article 284 of the Constitution of Nepal provides for a Constitutional Council chaired by the Prime Minister to recommend the appointment of the Chief Justice and heads of constitutional bodies. Sub-article (4) of the said Article of the Constitution states that the other functions, duties, and powers of the Constitutional Council and the procedures for the appointment of the Chief Justice or heads of constitutional bodies shall be in accordance with federal law. It is seen that this bill has been prepared to amend Section 6 of the existing Constitutional Council (Work, Duties, Powers and Procedures) Act, 2066, based on the subject mentioned. To uphold the constitutional principles of inclusivity, participation, and quality representation in line with the constitutional expectation when recommending appointments for the Chief Justice as per Article 129(2) of the Constitution and heads of constitutional bodies as per Article 283, and to control potential arbitrariness in the recommendation process, to establish good governance and the rule of law, and to institutionalize the separation of powers, checks, and balances in the operation of the state, there is no doubt or ambiguity regarding the crucial role of the Constitutional Council in making recommendations for appointments to constitutional bodies envisioned by the Constitution and implementing the Constitution. 2. A comparative study of the provisions of the Constitutional Council (Work, Duties, Powers and Procedures) Act, 2066, and the currently presented amendment bill reveals that, at first glance, it appears to be contrary to the spirit and intent of Article 284 of the Constitution, as well as universal democratic practices and norms, and I suspect that such practices may limit and narrow constitutionality. 3. Since everyone has a natural interest and concern in the decisions made by the Constitutional Council, public trust in it must be strong. It is observed that the Chairperson and other members of the Constitutional Council mentioned in Article 284(1) of the Constitution are permanent, but considering the unimaginable situation where the members in office may not remain in office at any given time or may be absent, the creation of laws targeting such situations may not create serious and complex circumstances, and my attention has also been drawn to this aspect. 4. Recommendations and decisions of the Constitutional Council must be made by the consensus of the total number of members mentioned. If, by any chance, consensus cannot be reached, the majority should not be overlooked in any way, and the basis of the majority should be considered the final pillar of decision. The provision in Section 6 of the Act, without any reasonable basis or reason, pointing to a special circumstance, the decision made by the Council with only the members present when at least the chairperson and the members in office are present, as per the amendment bill presented, will be understood as automatically a minority, therefore, it is necessary to reconsider the bill with such a provision. 5. It is also seen that the respected Parliament should consider that if the provisions of the Constitution and laws are disrespected with the intention of replacing constitutional and legal governance systems by prioritizing administrative convenience and practical needs, it will, in turn, encourage arbitrariness. Former President Bhandari had issued the ordinance related to the Constitutional Council twice. Former President Bidya Devi Bhandari had issued ordinances related to the Constitutional Council twice, on December 1, 2077 (BS) and April 21, 2078 (BS), upon the recommendation of the then government led by KP Sharma Oli. 52 officials in constitutional bodies were appointed by bringing an ordinance related to the Constitutional Council on December 1, 2077 (BS). After the then Prime Minister KP Sharma Oli's recommendation for the issuance of the ordinance was approved by the then President Bidya Devi Bhandari, the Chief Commissioner of the Commission for Investigation of Abuse of Authority and other officials were appointed. Those officials are still working. Less than 5 months later, on April 21, 2078 (BS), President Bhandari amended the Constitutional Council (Work, Duties, Powers and Procedures) again based on the recommendation of the government led by Oli. When questions arose about amending the same ordinance twice in a short period, the then President Bhandari stated that she did not have the authority to withhold ordinances recommended by the government. Article 66 of the Constitution, titled 'Functions, Duties, and Powers of the President,' describes the President's actions. Sub-article (1) of Article 66 states, 'The President shall exercise the powers and perform the duties vested in him/her by this Constitution or federal law.' Similarly, sub-article (2) states, 'Except for acts that are explicitly required by this Constitution or federal law to be performed upon the recommendation of any body or official, all other acts to be performed by the President shall be done upon the recommendation and consent of the Council of Ministers. Such recommendation and consent shall be submitted through the Prime Minister.' Citing this, Bhandari stated that she had approved the ordinance. Presidential advisor Kiran Pokharel informed that the ordinance is under study. 'The government has recommended issuing two ordinances. Those ordinances have arrived here,' Press Advisor Pokharel told Ratopati. 'Those ordinances are under study.' Constitutional expert Acharya says - the President can return it. Constitutional expert and senior advocate Dr. Bhimarjun Acharya said that the decision on the ordinance related to the Constitutional Council should be made keeping in mind the decisions made by the President and the President's Office previously. 'The institution of the President must remember the past actions taken by it. That is the President's responsibility,' Constitutional expert Acharya told Ratopati. 'If it is contrary to what has been done before, one can think. One can hold it. It is not considered appropriate to reject it outright. It is possible to return it any number of times by stating the reasons.' Acharya stated that there is no obstacle for the President to act as a protector and guardian as mandated by the constitution. Acharya said that the act of bringing an ordinance by postponing the Federal Parliament session that had been convened is wrong. 'It is wrong for the government to go the route of an ordinance by postponing the convened session of the Federal Parliament,' Acharya said.