Prime Minister Balen Shah Silent on Constitutional Council Appointments After Ordinance Issuance

Kathmandu. The day after President Ram Chandra Paudel issued the 'Ordinance to Amend the Constitutional Council (Work, Duties, Rights and Procedures) Act, 2066', Prime Minister Balendra Shah (Balen) has remained silent since recommending the Chief Justice on May 7. The Constitutional Council, which recommended the Chief Justice at a rapid pace after the ordinance was issued, has not called another meeting since then.

Following the issuance of the ordinance related to the Constitutional Council by adjourning the parliamentary session, Prime Minister Balendra Shah (Balen) has appeared silent after the recommendation of Chief Justice Dr. Manoj Kumar Sharma through a 'fast track'. Prime Minister Shah, in his capacity as the chairperson of the Constitutional Council, has not convened a meeting to recommend appointments for other vacant positions in constitutional commissions.

Chief Justice Sharma, recommended by the Constitutional Council meeting, has been approved by the parliamentary hearing committee and has assumed office. The delay in convening council meetings by the Chief Justice has led to uncertainty in the recommendation of office-bearers for constitutional commissions for a long time. Currently, there are 19 vacant positions in various constitutional commissions.

With the ordinance related to the Constitutional Council, it is even easier for Prime Minister Shah to convene meetings and make decisions quantitatively. Previously, a quorum required at least four members, including the chairperson, to be present. However, the ordinance has made provisions for a meeting to be held with the presence of at least three members, including the chairperson. It has also added a provision that a decision of the council will be considered valid with the support of at least three members, including the chairperson's vote, in a meeting attended by the chairperson and five members.

The revised arrangement is such that the vote of three people, including the prime minister, will be a majority, while the votes of the three members on the other side will be in the minority. Despite the ease in appointing office-bearers to constitutional commissions, the prime minister has maintained silence.

Currently, there are two vacant posts, including the chairperson, in the Election Commission. There is one vacant member post in the National Human Rights Commission. Similarly, there are two vacant posts, including the chairperson, in the Muslim Commission. The National Inclusion Commission has two vacant posts, including the chairperson, while the Commission for the Investigation of Abuse of Authority has one vacant post. The Tharu Commission has two vacant posts, including the chairperson, while the Madhesi Commission has two posts, including the chairperson.

There are four vacant posts, including the chairperson, in the National Natural Resources and Fiscal Commission. The National Natural Resources and Fiscal Commission is the most important commission with extensive responsibilities and jurisdiction. It ensures the equitable distribution of revenue and fiscal resources between the federal, provincial, and local levels in the federal governance system.

It also has the authority to determine the basis and framework for the distribution of revenue from the federal consolidated fund, recommend grants for fiscal equalization and conditional grants, and assess the expenditure responsibilities and revenue capacity of the provinces and local levels. There is one vacant member in the Women's Commission, and two members in the Dalit Commission.

Balnanda Poudel, Chairperson of the National Natural Resources and Fiscal Commission; Bishnu Prasad Chaudhary, Chairperson of the Tharu Commission; Vijay Kumar Dutta, Chairperson of the Madhesi Commission; Samim Miya Ansari, Chairperson of the Muslim Commission; and Dinesh Thapaliya, Chief Election Commissioner, have retired after completing their six-year terms. Article 284 (3) of the Constitution stipulates that the Constitutional Council must recommend names for appointment at least one month before a vacancy arises in the post of the chief or office-bearer of a constitutional body.

The Constitutional Council has a six-member structure, with the Prime Minister as the chairperson. The council includes the Chief Justice, the Speaker, the Chairperson of the National Assembly, the Leader of the Opposition in the House of Representatives, and the Deputy Speaker. Following the 2082 House of Representatives election, the current members are Prime Minister Balendra Shah (Balen), Speaker DP Aryal, Chairperson of the National Assembly Ganesh Timilsena, and Deputy Speaker Rubikumari Thakur, while Bhishma Raj Angdembe is from the main opposition party.

• Self-interest of the ruling party in the appointment of constitutional commission office-bearers

Although the Constitutional Council was conceived with the idea of balancing power for the impartial recommendation of office-bearers for various constitutional commissions, past precedents show that there have always been disputes in the appointment of office-bearers to constitutional commissions.

From the government led by Khilraj Regmi formed 13 years ago to the interim government a few months ago and even the Balen government, which was formed with a two-thirds majority, have resorted to ordinances to manipulate the Constitutional Council to their advantage.

Previously, former Prime Minister KP Sharma Oli issued ordinances in Mangsir 2077 and Baishakh 2078, appointing 52 office-bearers to various constitutional commissions. On both occasions, the government amended the provisions related to quorum and decision-making procedures in Section 6 of the Constitutional Council (Work, Duties, Rights and Procedures) Act, 2066, through ordinances.

The Act stipulated that a meeting could only be held if the chairperson and at least four members were present, and decisions on each matter were to be made by consensus. However, the ordinance issued in Mangsir 2077 introduced a provision that a meeting could be held if the chairperson and a majority of the currently available members were present, and decisions could be made by a majority of the members present at such a meeting. The repeated amendments to the Constitutional Council Act through ordinances have had an impact on the appointment of office-bearers to various constitutional commissions. The government led by Prime Minister Balendra Shah (Balen) Shah has continued the practice of previous governments by repeatedly issuing ordinances to recommend appointments of office-bearers to constitutional commissions.

The issuance of the ordinance related to the Constitutional Council appears to be an attempt by the ruling party to gain dominance over constitutional commissions. Constitutional commissions are responsible for recommending appointments of the Chief Justice and judges to the Supreme Court. The Commission for the Investigation of Abuse of Authority is a separate constitutional body for investigating corruption cases, while the National Human Rights Commission is established to monitor human rights violations by the state.

The Constitution itself envisioned a Constitutional Council to prevent the government from dominating appointments to such bodies. However, looking at past precedents, governments with a majority have been misusing the Constitutional Council.

Since the enactment of the Constitutional Council (Work, Duties, Rights and Procedures) Act on Poush 22, 2066, ordinances have been issued multiple times. After the Act was enacted, an ordinance related to the Constitutional Council was issued on Chaitra 4, 2069. The interim government led by then-Chief Justice Khilraj Regmi, formed after the dissolution of the first Constituent Assembly, issued an ordinance to facilitate the appointment of various constitutional office-bearers. At that time, the ordinance was issued, and Lokman Singh Karki was recommended for the post of Chief of the Commission for the Investigation of Abuse of Authority, a recommendation that became controversial.

The Supreme Court ruled that Chief of the Commission for the Investigation of Abuse of Authority Karki was disqualified in a writ filed by advocate Om Prakash Aryal regarding his qualifications. After the formation of the government through the election of the second Constituent Assembly, the first amendment to the Constitutional Council Act was made on Chaitra 12, 2070. Subsequently, it was amended in accordance with the constitution during the process of enacting laws on Fagun 13, 2072. Later, on Fagun 19, 2075, the Constitutional Council Act was amended again during the process of amending some Nepal Acts. On Asar 7, 2077, then-Prime Minister KP Sharma Oli issued an ordinance. He withdrew the ordinance three days after its issuance. On Asar 14, 2077, the provisions in the Act were reinstated.

On Mangsir 30, 2077, the government led by Oli issued an ordinance for the appointment of office-bearers to various constitutional commissions. Appointments to constitutional commissions were made through the ordinance. Later, on Baishakh 21, 2078, another ordinance related to the Constitutional Council was issued. On Asar 25, 2082, a bill related to the Constitutional Council was presented to President Ram Chandra Paudel and returned with a message. Following the Genji movement on Bhadra 23 and 24, 2082, the election government led by Sushila Karki recommended two ordinances, including one for the Constitutional Council, but President Paudel withheld them. Subsequently, on Baishakh 14, 2083, the government led by Balendra Shah (Balen) presented an ordinance. After being returned once and resubmitted, the President issued the ordinance.