Many positions at constitutional bodies were empty for quite a while. A dispute within the erstwhile Nepal Communist Party and its relation with the opposition Nepali Congress were two of the main reasons why these positions were left vacant.
With appointments made on February 3 and June 24, almost all positions of the constitutional commissions have now been filled after Prime Minister KP Sharma Oli found loopholes in the constitution to appoint people, mostly his aides, to serve his interest. These appointments were made without consultation with House Speaker Agni Prasad Sapkota and opposition party leader Sher Bahadur Deuba, who are also members of the Constitutional Council, and hence many are calling these appointments unconstitutional. Deuba and Sapkota have been boycotting the council meetings stating that Oli has been doing as he pleases as almost all the appointments were made by him personally.
Opposition parties since have been condemning the appointments as they have been stressing that they will revoke the appointments if and when they come to power. But, doing that is not going to be as smooth as they think due to various laws in place.
Some writ petitions have been filed at the Supreme Court soon after appointments, but no hearing has been made so far causing concern amongst experts who are questioning why and how was this allowed to happen. They argue that these appointments made by Oli are sure to weaken the democracy as the constitutional bodies are on the verge of becoming a lapdog rather than a watchdog.
Principle vs practice
This is not the first time that political cadres have been appointed to various positions of the constitutional commissions. It is a practice that has been ongoing for years. One of the reasons why it has been criticised right now is that most of these appointments are not inclusive. Former chief of the Commission for the Investigation of Abuse of Authority, Surya Nath Upadhyaya, says that this will give out a wrong message and affect democracy in the country.
“It seems like those in power want to have their people in all the places. This will break people’s trust in the country’s law and its constitution. If you can control a body that controls the law, you won’t have to worry about the law,” says Upadhyaya.
The constitution assigns the Constitutional Council to recommend officials of constitutional bodies. The chair of the council is the prime minister while its members include the chief justice, speaker and deputy speaker of the House of Representatives, chair of the National Assembly and the opposition party leader in the House of Representatives.
Experts argue that as the council has five members, Oli alone cannot be making decisions and appoint people to fulfil his agendas.
Senior advocate Dinesh Tripathi says that the constitutional commissions were envisioned to monitor the government. But now, as the commissions have members close to the ruling party, they can no longer act as a watchdog, he claims.
“When you have your own people in the position of power, who will tell you that you are doing wrong?” he questions. “These bodies should be independent and impartial and should have no prejudice on an issue.”
Senior advocate and constitution expert Radheshyam Adhikari agrees with Tripathi. “The constitution clearly states that the government cannot directly appoint people in these constitutional bodies as they should undergo a parliamentary hearing,” he says.
‘Can’t avoid parliament’
Experts like Adhikari say that certain rules and regulations must be followed before appointing officials at various constitutional bodies as they say that the House of Representatives must be told about the appointments before they are made public.
The past few appointments have all be made without following due process listed in the constitution, say experts. While the government says that it skipped that process because the House was dissolved, experts say that the reason is not good enough.
Adhikari says that Oli had given the names of the people he wanted to appoint at various constitutional bodies just before he dissolved the House. He calls it is a cheap shot by the prime minister.
“He sent the name in the morning and then by evening he dissolves the House and appoints them 45 days after he had given in the names. If this is not cheating, what is?” he says adding that a parliamentary hearing has been made mandatory in the constitution before appointing officials.
He accuses Oli of finding loopholes to bypass the parliament and appoint the people he wanted to appoint without having any discussions.
Questions on inclusivity
The constitution talks a lot about inclusiveness. Like in schools, colleges and government offices, inclusiveness is also mandatory during constitutional appointments. But, Oli has bypassed that as well. Take the Inclusive Commission for example. The commission has members solely from the Khas-Arya groups, which means that the commission formed to promote inclusiveness in the country itself is not inclusive as it also only has one woman member.
“This is a joke. How can people take such an un-inclusive commission seriously,” says Adhikari.
The state of other commissions is similar as it is dominated by the people from the Khas-Arya community as only a few Madhesis, indigenous people and Dalits have been included to be a part of the commissions. Those that have been included are those who were close to Oli or people who have been in high ranking positions for years.
Take Prem Kumar Rai for example as he has been appointed the chief of the CIAA. People close to Oli might say that a person from an indigenous community has been given a high-ranking position at one of the most powerful bodies in the country. But, many say that Rai only got the position due to his close ties with Oli. This commission also has only one woman member. Similar examples can be found in the Women Commission and the Election Commission.
Concerns regarding election and human rights commissions
Experts say that the people who have been appointed at these commissions might not work towards the benefit of people but for the benefit of the person that put them there.
Over the past few months, people have started to question if the Election Commission is working towards the benefit of the country as it has not been able to make a concrete decision about the ruling party.
Similarly, the commission has also not issued a verdict about the issues surrounding the Janata Samajbadi Party as many feel that the commission is working for the benefit of Oli.
“If Oli wanted, these commissions would be running smoothly, but it seems like he wants his control over everything. He’s trying to rule with an iron fist and is failing,” says Upadhyaya.
Tripathi adds that the commission has been taking decisions that mostly favours Oli. “If this wasn’t the case, why is the commission not acting independently,” he questions.
Adhikari is also puzzled why the Election Commission has been in such a confused state. He says that the commission should have been away from the controversy, not in the centre of it.
“People will stop believing these commissions. They will lose faith in them even if they do good work,” says Adhikari.
The National Human Rights Commission is also at the centre of this. The commission was formed 22 years ago and since then, no one had raised a finger at it. But recently, after the appointment of the Tap Bahadur Magar-led team, the United Nations Human Rights Council has written to the government over the controversial appointments of its office bearers.
“It’s embarrassing to see a global organisation question the integrity of the NHRC. It gives out a wrong message to the world,” says Upadhyaya.
The NHRC is currently graded ‘A’ by the Global Alliance of National Human Rights Institutions for its compliance with the Paris Principles, but it is likely that it will now be demoted to grade ‘C’ after the controversial appointments.
“We’ve been humiliated internationally and it’s all one man’s fault,” says Tripathi.