The government, in its two meetings with the Constitutional Council in the last five months, has recommended and appointed more than half of the officials in several constitutional bodies.
When the House of Representatives was dissolved, the government had appointed officials in most of the constitutional bodies through an ordinance on the Constitutional Council issued last December.
As per the ordinance, a majority presence – three members from the five-member Constitutional Council – can decide on recommending leading candidates for constitutional bodies.
The Council Act earlier required the presence and consensus of the chairperson and at least four members when making any decision.
The Constitutional Council comprises of the Prime Minister as the chair, Chief Justice, House Speaker, Deputy Speaker, National Assembly chair and leader of the main opposition party.
As the post of Deputy Speaker is vacant, the Constitutional Council currently has only five members.
After President Bidya Devi Bhandari on May 4 reissued seven ordinances, including the Ordinance (First Amendment) Concerning the Constitutional Council (Functions, Duties, Powers, and Procedures), a Constitutional Council meeting held on Sunday recommended candidates to be appointed as heads of the Public Service Commission and Commission for the Investigation of Abuse of Authority, among other constitutional bodies.
The meeting was attended by Prime Minister KP Sharma Oli, Chief Justice Cholendra Shamsher JBR and National Assembly chair Ganesh Prasad Timilsina.
Primary opposition Nepali Congress party leader Sher Bahadur Deuba and House Speaker Agni Sapkota did not attend the meeting. Deuba despite not attending the meeting, however, reportedly recommended Madhav Regmi as the chairperson of the Public Service Commission.
Madhav Regmi is the brother of Supreme Court Judge Kumar Regmi, who was in the joint bench that decided to annul Nepal Communist Party unification and give away the party name.
Those recommended and appointed via previous meetings of the Constitutional Council have already assumed office without going through the constitutional provision that mandates a parliamentary hearing of candidates before appointment.
If not for the ordinance, the meetings and decisions of the Constitutional Council would not have been valid without the presence of at least five members. However, the ordinance has paved the way for a limited number of office bearers to make decisions by disregarding the provisions in the constitution.
The constitution envisages a six-member Constitutional Council to appoint officials to independent and autonomous constitutional bodies so as to prevent the government from becoming autocratic and to maintain power balance.
Following difference of opinion between Prime Minister Oli and his counterparts, President Bhandari had issued the ordinance that would allow the Constitutional Council meeting to be held and make recommendations even with the attendance of a limited number of members.
Appointing near-ones, instead of qualified candidates through open competition, in independent constitutional bodies results in power imbalance and perpetuates nepotism as well as impunity.
“This is extreme anarchy overriding the constitution. Such activities have tarnished Nepal’s image in the international community as well,” said former Supreme Court Justice Balaram KC.
Ordinances are considered an exception in a democratic governance system. Any ordinance can be issued in case of urgency in the absence of the parliament, that too for a limited period of time.
However, PM Oli has taken the route of routinely issuing ordinances for his personal gains.
Meanwhile, Chief Justice JBR attended Sunday’s meeting and signed the recommendation letters even though several cases related to ordinances, constitutional councils and recommendations are currently under consideration in the Constitutional Bench and other regular sessions of the Supreme Court, some under his own bench.
According to former Supreme Court Justice KC, such activities clearly indicated that the Chief Justice was also involved in overriding the constitution.