July 13, Kathmandu.
The dissolved House of Representatives has been re-established by the Supreme Court on Monday. The Supreme Court has issued an order to appoint Nepali Congress President Sher Bahadur Deuba as the Prime Minister by this evening.
At the same time, what is the future of the controversial constitutional appointment made by the outgoing Prime Minister KP Sharma Oli through an ordinance? The question has been raised.
Prime Minister Oli had started the process of arbitrary constitutional appointment by bringing an ordinance on 30 December 2077 BS. The arrangement was made to hold a meeting of the Constitutional Council with three members including the chairperson of the Constitutional Council. Soon a large number of appointments were made to constitutional bodies. A case has been filed in the Supreme Court against the appointment.
Speaker Agni Prasad Sapkota has gone to the apex court with a case against the constitutional appointment. The Speaker's writ was not a priority of the apex court and the hearing has not started yet.
According to the ordinance, the council meeting held on December 12, 2077, BS had recommended the appointment of more than three dozen officials in the constitutional bodies including the Commission for Investigation of Abuse of Authority, Election Commission, and National Human Rights Commission. Those who were recommended at that time were appointed without a parliamentary hearing and are currently in office. (At the time, some even rejected the recommendation.)
Prime Minister Oli brought back an ordinance of the same nature on April 6, 2008. While the first ordinance was being opposed, the disputed appointment was continued by bringing the second ordinance.
As per the second ordinance, a meeting of the Constitutional Council was held on April 10 and recommended the appointment of 20 office bearers in various constitutional bodies including the Public Service Commission in the presence of three people. He was also sworn in by the President after 45 days without a parliamentary hearing.
What is a constitutional provision?
The constitution seeks the presence of the state in the Constitutional Council that recommends constitutional appointments. And I have not imagined a constitutional appointment without a parliamentary hearing.
Article 284 of the constitution provides for a constitutional hearing and Article 292 provides for a parliamentary hearing before the appointment.
Article 284 provides for a Constitutional Council to recommend the appointment of the Chief Justice of the Supreme Court, a judge, a member of the Judicial Council, the head of a constitutional body, or an official.
The Council, chaired by the Prime Minister, consists of the Chief Justice, the Speaker of the House of Representatives, the Speaker of the National Assembly, the Leader of the Opposition in the House of Representatives, and the Deputy Speaker of the House of Representatives.
This provision has been made so that the shadow of the executive does not fall on the constitutional body and the officials of the constitutional body can perform their duties in an independent, impartial and neutral manner.
In case of vacancy in the post of Chief Justice, there is a provision for the Minister of Law and Justice of the Government of Nepal to be a member of the Constitutional Council when recommending the appointment of the Chief Justice. The Chief Secretary of the Government of Nepal is said to be the Secretary of the Constitutional Council.
Looking at these provisions of the constitution, the appointments made by Prime Minister Oli twice are against the principle of separation of powers. The ordinances related to the Constitutional Council are controversial.
Similarly, Article 292 provides for a pre-appointment parliamentary hearing. For this, there is an arrangement to form a 15-member joint committee consisting of members of both the houses of the federal parliament. The committee has 12 members from the House of Representatives and three members from the National Assembly representing all the political parties in the federal parliament.
To make the parliamentary hearing more systematic and effective, the working procedure of the Parliamentary Hearing Committee, 2075 BS has also been implemented.
Provision has been made that the list received by the hearing committee should be heard within 45 days and if no hearing is held within that period, there will be no impediment for an appointment.
If the proposed name is not rejected by a two-thirds majority of the total members of the committee, the proposed name is deemed to have been approved.
However, the absence of a parliamentary hearing has violated the prerogatives of the sovereign parliament and deprived citizens of the right to lodge complaints.
For the first time, the speaker withdrew his recommendation for a hearing. Returning the recommendation did not yield any results. The second time the speaker did not return the recommendation.
On the other hand, no precedent has been set for appointments made without a parliamentary hearing. The Supreme Court has yet to explain this.
How to correct Eyes on the top
Parliament has a meaningful presence in the Constitutional Council. The Speaker, Deputy Speaker, and Chairperson of the National Assembly are members of the Constitutional Council.
Officials of constitutional bodies can be removed only by Articles 101, 133 (1) and (2), 137 (3) of the Constitution.
There is a constitutional provision for the post to be vacated if the President resigns in writing, reaches the age of 65, dies, and is unable to perform his duties due to physical or mental illness. Apart from this, the only other way is impeachment and the decision of the Supreme Court.
Article 101 (2) of the Constitution provides for the conditions under which impeachment can be instituted, where it is stated that in case of serious violation of the Constitution and the law, lack of efficiency, misconduct, dishonest non-compliance with official duties, and serious violation of the Code of Conduct.
These foundations of the constitution must have been fulfilled to remove the office bearers of the constitutional bodies appointed on 30 December and 21 April.
On the other hand, the issue of his appointment is pending in court. Therefore, all eyes are now on the Supreme Court and now it has to be explained by the Supreme Court.
The presence of the Chief Justice in the council meeting is constitutionally mandatory. However, the serious question as to why he did not prioritize the issue related to it has not been resolved.
If the Supreme Court had interpreted the case against the ordinance against the constitutional appointment which came for the first time, the second ordinance could not have come. Or if the Supreme Court had explained that constitutional appointments can be made by bringing an ordinance like the Prime Minister, it could have taken legal form. However, the Chief Justice is silent on this. The issue has not been taken forward.
Ordinance related to the Constitutional Council and timeline of the appointment
Meeting of the Council on December 12, 2008, and recommendation of 45 names in various constitutional bodies.
- First Amendment Ordinance, 2077 BS related to the work, duties, rights, and procedures of the Constitutional Council issued on December 12, 2008.
Advocate Omprakash Aryal has filed a writ petition in the Supreme Court seeking repeal of the ordinance.
Senior Advocate Dinesh Tripathi has filed a writ petition seeking repeal of the ordinance.
Letter of recommendation from the Constitutional Council to the Parliamentary Hearing Committee for hearing the appointments made as per the ordinance on December 20, 2008 (after the dissolution of the House of Representatives).
Advocate Aryal and senior advocate Tripathi filed six writ petitions against the ordinance.
The recommendation letter for the appointment of the Constitutional Council, which reached the Parliament for hearing by the Speaker on January 3, 2008, was returned.
Oath by the President of those appointed as per the ordinance on January 7, 2008. Of the 45 recommended, only 32 took the oath and the rest refused.
Speaker Agni Prasad Sapkota filed a writ petition against the constitutional appointment of 39 people including the President, Prime Minister, and Chief Justice on January 7, 2008.
Ordinance submitted to the reconstituted House of Representatives on March 7, 2008. (Nothing passed or failed from Parliament.)
Ordinance on the Constitutional Council re-issued on April 6, 2010.
Meeting of the Constitutional Council on April 10 recommended the appointment of 20 officials in various constitutional commissions including the Public Service Commission as per the ordinance.
Law practitioners filed a writ petition against the new recommendation of the Constitutional Council on June 12, 2008.
