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Nepal: Constitutional appointments yet another Oli bid to wield control over key institutions

ISSUE-2-Nepal-04-02-2021

It was somewhat apparent about a month and a half ago.

When Prime Minister KP Sharma Oli suddenly introduced an ordinance–an earlier one was withdrawn after severe criticism–on the Constitutional Council Act on December 15, many had smelt something sinister.

Through the ordinance, Oli had changed two important provisions regarding summoning the Constitutional Council meeting and taking decisions on majority basis from among the members present in the meeting. The Office of the President spent no time in promulgating the ordinance.

On the evening of December 15, the Council, headed by Oli, made a slew of recommendations for various constitutional bodies with the nod from Chief Justice Cholendra Shumsher Rana and National Assembly chair Ganesh Timilsina.

With the ordinance, Oli had already defenestrated the House Speaker and the leader of the main opposition, the other members of the Council. The sixth member–Deputy Speaker–had not been elected.

Five days later, on December 20, the recommendations were sent to the Parliament Secretariat–but only after Oli dissolved the House of Representatives.

The purpose of sending the recommendations to the Parliament is conducting parliamentary hearings of the nominees. But along with the House, the parliamentary hearing committee too had been killed.

Forty-five days later, on Wednesday morning, 32 of the 38 appointees for 11 constitutional bodies were administered the oath of office and secrecy. The Office of the President displayed its promptitude once again and appointed them to their respective posts.

Criticism came thick and fast.

Analysts say Wednesday’s appointments have shown once again that Oli can go to any extent to serve his interest.

“I have failed to understand the ultimate goal of this ongoing series of attacks on the rule of law,” said Bhoj Raj Pokhrel, a former chief election commissioner, known as a civil servant with high integrity. “The present government has messed up everything.”

Immediately after the oaths were administered to 32 individuals, Pokhrel wrote on Twitter: “What to say… when the state commits a fraud?”

Oli’s move of introducing the ordinance on December 15 had been called by analysts as a Machavellian fraud on the constitution.

The constitution envisioned the composition of the Constitutional Council with a view to ensuring the checks and balances but by amending the provisions, Oli had disturbed the balance of power.

At least two writs were filed at the Supreme Court challenging Oli’s ordinance move, but not even a single hearing was conducted.

On Tuesday, senior advocate Dinesh Tripathi approached the court demanding that the recommendations be quashed, but his application was not registered.

The court accepted Tripathi’s petition only on Wednesday evening, hours after the new appointees had assumed office.

“I have demanded that the court bar the new office bearers from discharging their duties, besides quashing their appointments,” Tripathi told the Post. “Article 292 of the constitution has made parliamentary hearings mandatory for any appointment to constitutional bodies, but they were administered oath without conducting a hearing.”

Observers say everything seems to have been carried out as part of a design, as the appointments were made exactly on the 45th day since the list of recommendations was sent to the Parliament Secretariat.

Rule 26 (2) of the Joint Parliamentary Meeting Regulation of the federal parliament says there would be no obstruction for the recommended people to assume office in constitutional bodies if the hearing committee fails to take any decision within 45 days of receiving the letter from the Council.

But to avoid any parliamentary hearing for the nominees, Oli had already killed the House.

Laxman Lal Karna, who chaired the parliamentary hearing committee, says the rule has been misinterpreted.

“The 45-day period is valid only after the hearing committee fails to continue the hearing once the process is started,” Karna told the Post. “We had a different situation. The hearing committee had died before it received the list, as the House had been dissolved. Today’s oaths and appointments clearly violate Article 292.”

Of the 32 appointments, the appointments at the Commission for Investigation of Abuse of Authority and the Election Commission have drawn attention of people from various quarters.

Prem Kumar Rai has been appointed as chief commissioner of the Commission for Investigation of Abuse of Authority, and Ram Prasad Bhandari and Janki Kumari Tuladhar have been appointed election commissioners.

Rai had always been Oli’s top choice for the anti-graft agency. Similarly, Oli was trying to fill the commissioners’ post at his will.

Many say Oli has installed “his people” at the anti-graft commission, which in principle should be an independent constitutional agency, so as to threaten his opponents.

Oli’s House dissolution move on December 20 resulted in the split of the Nepal Communist Party–and the other faction is led by Pushpa Kamal Dahal and Madhav Kumar Nepal.

Both Dahal and Nepal have declared a war on Oli.

Speculations were rife that Oli would try to take some steps so as to hang the Democles’ sword over his opponents, including Dahal and Nepal, in a bid to have an edge over them.

The appointments at the election body, however, seem to be aimed at the snap polls Oli has declared for April 30 and May 10.

Whether the country would head for polls will depend on the Supreme Court as it is currently testing the constitutionality of the House dissolution move. If the court overturns Oli’s House dissolution decision, the country’s politics will return to the Parliament. But if the court endorses Oli's decision, there will be no other option than for the country to go to polls. It’s, however, not clear yet if Oli will be able to hold the elections on declared dates.

As per the current schedule, the first phase of voting should take place on the 86th day from today.

By bulldozing the appointments, especially at the anti-graft body and the poll commission, Oli seems to have made an attempt to pre-empt any potential risks that could harm his position.

Girish Chandra Lal, former justice at the Supreme Court, said the way the government has rushed through the appointments shows it is guided by a mala-fide intention.

“Our constitution doesn’t give room for the appointments to the constitutional commissions without the nominees going through parliamentary hearings,” Lal told the Post. “So the government doesn’t have a clean hand in the appointment process.”

According to Lal, as cases against the ordinance, based on which the appointments were done, are under consideration at the court of law, a necessary decision on the matter can be expected.

The cases, however, are with the Constitutional Bench, which is also hearing a dozen petitions challenging Oli’s House dissolution move.

The Constitutional Bench, led by Rana, which earlier used to sit twice a week–on Wednesday and Friday–is now continuously hearing the cases on the House dissolution.

Since the Bench, as per the constitution, has to be headed by Chief Justice Rana, it is unlikely that it would hear the cases against ordinance anytime soon–at least not until the House dissolution case is finalised.

Prakash Osti, a former Supreme Court justice and a former member of National Human Rights Commission, said the government pushed the unconstitutional appointments as it wants to have control over the constitutional commissions that are meant to keep the government in check.

According to him, the country under Oli has clearly entered an era of mobocracy where there is no point in talking about rule of law.

If the House is restored, Oli could try to employ his “men” at the anti-graft agency to scare his opponents. If the country goes to polls, Oli wants to have the upper hand with people of his choice already installed at the poll commission.

In March 2019, the Constitutional Council had appointed Dinesh Chandra Thapaliya as the chief election commissioner. Thapaliya is considered Oli’s pick. Apart from chief election commissioners, the Election Commission has four commissioners.

The Nepal Communist Party legitimacy dispute is currently with the Election Commission. The poll body has already been facing charges of failing to discharge its duty independently.

“Oli clearly had his focus on appointments at the anti-graft agency and the Election Commission,” Osti, the former Supreme Court justice, told the Post. “Through the appointments, he is trying to create a shield for himself against any potential risk in the future.”

Even though Oli’s authoritarian impulses were on display ever since he assumed office in February 2018, he has been behaving as though he is the state after dissolving the House on December 20. His actions have dragged almost all key institutions–the Office of the President, the judiciary and the legislature–into controversy. Oli has continuously been making statements that there are no constitutional provisions to restore the House, even as the judiciary is testing the constitutionality of his decision.

According to Pokhrel, the former chief election commissioner, the country has been thrown into a big mess.

“The problem has arisen because the present leadership of the government,” said Pokhrel, “has failed to differentiate between the party, the state and the government.”