The recent appointments to constitutional bodies, explained

Lost in the turmoil over Prime Minister KP Sharma Oli’s dissolution of the House of Representatives on December 20 has been the prime minister’s more insidious challenge to the country’s democratic institutions in the form of the Constitutional Council ordinance. 

The Constitutional Council makes recommendations for the numerous check-and-balance bodies mandated by the constitution itself. These include the Commission for the Investigation of Abuse of Authority (CIAA), the corruption-control body mandated to look into graft involving government officials; the National Human Rights Commission, mandated to investigate cases of human rights abuse and recommend action; and the Election Commission, the body that conducts elections. All of these important state organs perform vital roles in keeping the country’s democracy vibrant and functioning, and as they answer directly to Parliament and not the head of government, they are able to exercise influence on the functioning of the executive. 

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It was for precisely this reason that Oli had been attempting to take control of the Constitutional Council, which includes the prime minister, chief justice, the House speaker, deputy House speaker, chair of the National Assembly, and leader of the opposition as members. But Oli had been stymied time and again by a number of the council’s members, especially Nepali Congress President Sher Bahadur Deuba, since the council requires that at least four members, including the leader of the opposition, be present to sit for a meeting. Or it once did. 

On December 15, days before his House dissolution, Oli dispatched an ordinance regarding the Constitutional Council to President Bidya Devi Bhandari, who swiftly approved it. The ordinance amended the Constitutional Council Act to allow the council to sit even when the leader of the opposition is not present and to take decisions on the basis of a simple majority. 

That same day, the council, chaired by Oli, recommended 38 names for 11 constitutional commissions, including former Home Secretary Prem Kumar Rai for chief of the CIAA. However, the Parliamentary Hearing Committee was unable to conduct a hearing as required by law because five days later, it was dissolved. The names were then forwarded to President Bhandari, and on Wednesday, Chief Justice Cholendra Shumsher Rana administered the oath of office to 32 individuals, including Rai. 

According to Bipin Adhikari, a constitutional scholar and former dean of the Kathmandu University School of Law, the appointments were made citing a controversial provision in the regulations of the federal Parliament that allows for appointments to be made “without obstruction” after 45 days of the Parliament receiving the recommendations. Fifty days have passed since the recommendations were dispatched to the Parliament-Secretariat. 

“Some may cite the legal provisions but these appointments have now taken us down a series of unconstitutional and illegal actions,” said Adhikari. 

According to legal experts, the provision in the parliamentary regulations only applies in case the Parliament is unable to complete its hearing within 45 days, not when the Parliament itself is not in session. Oli made certain that his recommendations would be fulfilled by dissolving the House. 

“The provision only applies if the parliamentary committee isn’t working diligently. But when the Parliamentary Hearing Committee itself isn’t in place, nominees cannot be appointed automatically,” said advocate Dinesh Tripathi, a lawyer who had registered a writ petition at the Supreme Court immediately after the appointments were made. The court rejected the petition. 

Oli’s dissolution of the House has also been challenged by numerous petitions at the Supreme Court but a decision has yet to be made. Many believe that the court is not likely to reverse Oli’s decision, given the actions of Chief Justice Rana. Not only did Rana administer the oath of office to recommended individuals on Wednesday but he, along with Oli and National Assembly chair Ganesh Prasad Timilsena, was part of the council that made the recommendations in the first place. 

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With his appointments in place, Oli is likely to use them to his advantage. Immediately after his recommendation, CIAA chief Rai had promised to open up old cases, particularly cases involving corruption in the Maoist combatant cantonments. Oli’s arch-rival Dahal has been accused of embezzling millions in funds meant for Maoist combatants in cantonments immediately after the end of the civil conflict in 2006. A corruption case, registered at the CIAA, has been pending for six years.  Many believe that Oli will attempt to use Rai and the CIAA as a stick with which to threaten Dahal. 

How important these appointments are to Oli is reflected in the manner in which he passed the ordinance. He’d made an attempt to get the ordinance passed before. In April last year, two ordinances, one concerning the Political Party Act and the other concerning the Constitutional Council, were swiftly passed and then just as swiftly recalled after they generated great controversy. At that time too, Oli tried to circumvent a parliamentary hearing as the House was in recess. On December 15, he tried again, and this time, there was no hue and cry. 

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As the Constitutional Council recommends members to positions that are supposed to be above partisan politics, it was envisioned with consensus in mind, which is why the presence and assent of the leader of the opposition was once mandatory. But Oli’s amendment ordinance has made it easier for him to weaponise powerful constitutional bodies against his political enemies. 

Dahal knows of Oli’s plans, which is why directed Agni Sapkota, the House Speaker, to send back the recommendations on February 1. Sapkota, a close ally of Dahal since the conflict years, duly complied but the appointments were made regardless. 

 But it is not just the CIAA that has the potential for misuse. Even appointments to the Election Commission, when elections have been scheduled for the spring in April-May, are suspect. As is the appointment of Tap Bahadur Magar as chair of the National Human Rights Commission when Nepal’s image on the international stage has been taking a beating for its failure to ensure transitional justice and numerous cases of security agencies using undue force on protestors and civilians.

“In the past, the Parliament had sent back names of election chief commissioner Ayodhee Prasad Yadav and Judicial Council nominee Ram Prasad Sitaula as the Parliamentary Hearing Committee wasn’t in place,” said advocate Tripathi, citing past precedent.

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 Under Article 114 of the constitution, any ordinance passed by the President must be tabled and passed by both Houses of Parliament within six months. Polls to elect a new House of Representatives have been scheduled for April-May but it is uncertain if they will be held. Even if elections are held, it could be difficult for Oli to gain a similar majority in the new Parliament and get his ordinances approved. It is unclear what will happen to the appointments if Parliament rejects the ordinances. 

“More constitutional complications will unfold in the days to come,” said Adhikari, the constitutional law professor. “That’s why it’s necessary to immediately restore the House.”