Supremacy of prime minister (executive) on constitutional council sparks debate
On June 3, Ramhari Khatiwada, chairperson of the State Affairs and Good Governance Committee, presented the committee’s report on the Constitutional Council (Functions, Duties, Powers, and Procedures) (First Amendment) Bill, 2081, to the House of Representatives. The committee unanimously passed the bill on the same day, including a provision that decisions require the Prime Minister’s agreement.
The bill had been delayed due to disputes among political parties over whether the Council could make decisions without the Prime Minister's consent, given the absence of legal provisions regarding the Constitutional Council.
Why was the Bill presented?
According to Khatiwada, the bill was necessary to resolve the dispute between the Congress and UML parties regarding the Prime Minister’s consent for Council decisions. The committee decided to present the report amending the Constitutional Council (Functions, Duties, Powers, and Procedures) Act, 2066, to parliament.
The bill stipulates that decisions can be made by the Constitutional Council if the Chairperson and at least 50 percent of the current members are present. Previously, when the Congress-Maoist alliance was in power, the UML, then the main opposition, insisted that decisions should be possible without the Prime Minister's agreement. However, with the formation of the UML-Maoist-RSP ruling coalition, the UML has dropped this stance. The Constitutional Council includes the Prime Minister as chairperson, the Chief Justice, the Speaker, the National Assembly Chair, the leader of the main opposition party, and the Deputy Speaker. The bill specifies that a Council meeting quorum is met if the Chair and at least 50 percent of the current members are present. If a unanimous decision cannot be reached, the decision will be made by a majority vote of the Chairperson and at least 50 percent of the current members.
Expert opinions
Former chairperson of the Public Service Commission, Umesh Mainali, emphasized that the original intention of the Constitutional Council was to represent high-level officials to protect national interests. He suggested that the Council should appoint officials from a vetted shortlist, ensuring transparency and public accountability.
Gopal Krishna Ghimire, Chairperson of the Nepal Bar Association, criticized the bill for undermining the balance of power by placing constitutional bodies and the judiciary under executive control. He stressed the need for the Council to remain independent and free from political manipulation.
Constitution expert Bhimarjun Acharya warned that if the bill, allowing the executive head to dominate Council decisions, is passed, it would undermine the judiciary and other constitutional bodies, violating principles of power balance.
Senior advocate Dinesh Tripathi echoed these concerns, stating that the bill disrupts the balance of power and turns the Council into a tool for political bargaining and personal appointments.
Constitutional Council politics
In 2077 BS, amid disputes within the then-ruling Nepal Communist Party (NCP), the KP Oli-led government dissolved Parliament and appointed 52 officials to constitutional bodies. These appointments are currently under Supreme Court review, raising questions about the legitimacy of the Council used for political interests by both ruling and opposition parties.
History of the Constitutional Council in Nepal
The Constitutional Council was first introduced in the 2047 BS Constitution to ensure democratic appointments to key state bodies. The Interim Constitution of 2063 BS continued this provision after the monarchy’s fall. Before 2047 BS, appointments were made by the king based on Cabinet recommendations.
Provisions in the 2015 Constitution
The 2015 Constitution mandates that appointments to constitutional bodies adhere to inclusion principles and maintains the Constitutional Council chaired by the Prime Minister. The Council includes high-ranking officials and requires parliamentary hearings for appointments.
Working mechanism
The Prime Minister, as Chair, calls Council meetings, notifying members 48 hours in advance. If consensus is not reached, the meeting adjourns, and a new meeting is called. If there is still no agreement, decisions are made by majority vote, followed by parliamentary hearings for the recommended candidates. The President then appoints the approved candidates.
Importance
Experts highlight that the Council was established to ensure representation from all state branches, maintaining the separation and balance of powers. Constitutional expert Adhikari argues that Council recommendations are more democratic than those by the Cabinet alone.
Conclusion
The Constitutional Council (First Amendment) Bill, 2081, is controversial as it mandates the Prime Minister’s agreement for Council decisions, shifting power towards the executive. While the bill aims to resolve political disputes, it faces criticism for undermining judicial and constitutional independence. Historically, the Council was designed to ensure balanced appointments across state branches. Recent political maneuvers, however, have compromised its impartiality, raising concerns about maintaining the separation of powers in Nepal’s governance structure. The necessity and structure of the Constitutional Council continue to be subjects of political debate and judicial scrutiny in Nepal.
Politicization of Nepal’s judiciary is entrenched
The Constitution of Nepal envisions three distinct branches of government: legislative, executive, and judicial. These branches are meant to function independently, free from interference from each other.
While the legislative and executive branches are inherently political, the judiciary is intended to remain impartial and free from political influence to maintain its credibility. However, in practice, the Judicial Council, which recommends the appointment of judges in Nepal, is heavily influenced, if not dominated, by political interests. This political influence extends to the Constitutional Council, which recommends the Chief Justice of the Supreme Court, making the executive a key player in judicial appointments.
This politicization of judicial appointments has raised significant concerns about the competency, impartiality, and integrity of the judiciary. Many court verdicts in Nepal seem to be influenced by political pressures, undermining the judiciary's credibility and eroding public trust. A competent and independent judiciary is essential for upholding the rule of law and ensuring that justice is administered fairly.
Shree Krishna Bhatarai, former District Judge, says: “The credibility of the judiciary has been declining due to increasing political interference. Political parties appoint their desired candidates as judges to serve their interests, and they resort to impeachment if any hurdles arise. This trend has recently been on the rise, undermining the principles of constitutionalism and judicial independence.”
When did politics start infiltrating the judiciary?
Gandhi Pandit, professor of law at Tribhuvan University, says the turning point is often considered the event of 2013 when then Chief Justice Khil Raj Regmi was appointed the chairman of the Council of Ministers to remove then Prime Minister Baburam Bhattarai, due to the lack of consensus among political parties.
“This move laid the foundation for the political exploitation of the judiciary,” says Prof. Pandit
According to him, political interference in Nepal’s judiciary began as early as 2047 BS. However, post-2062/63 BS, political meddling increased significantly, culminating in Regmi’s appointment as both the head of the executive and judiciary. Some analysts believe this appointment instilled a tendency among judges to seek political advantage.
Subsequent Chief Justices after Regmi have been embroiled in various controversies. After Regmi, Damodar Prasad Sharma served as acting Chief Justice, a period considered golden for middlemen and the corrupt. Sharma was notorious for appointing his nephew as a judge in the then-Appeals Court, fostering factionalism among Supreme Court judges, and failing to make permanent appointments for competent judges, allowing them to retire instead. Ram Kumar Prasad Shah, who succeeded Sharma, attempted some reforms but was not free from controversy. Kalyan Shrestha, who followed Shah, faced similar issues.
The first female Chief Justice, Sushila Karki, faced impeachment over a dispute regarding the appointment of the police chief. Although the impeachment was later withdrawn, this incident set a precedent for using impeachment as a tool against non-compliant judges, a tactic also used against suspended Chief Justice Cholendra Shamsher Rana.
Increasing political influence and power-sharing deals have eroded the judiciary’s credibility, shaking the foundation of the one institution people still trust. Experts argue that the root cause lies in the flawed appointment process.
The structure of the Judicial Council, changed through the interim constitution after the second people’s movement of 2006, heightened political interference. The new system included only the Chief Justice and the senior-most justice from the Supreme Court, with three additional members: the Minister of Law, a lawyer sent by the Prime Minister, and another lawyer recommended by the Nepal Bar Association. This made it easier for politically affiliated lawyers to join the council.
This structure led to a high level of political quota distribution in judge appointments in 2070 and 2071 BS. In 2070 BS, 15 newly appointed Appellate Court judges visited the UML party office to express their gratitude on the same day they took their oaths of impartiality and independence. Now, the UML, which facilitated political intrusion into the judiciary, is trying to distance itself from the issue.
In the midst of widespread controversy and disorder, some interpret the political manipulation of the judiciary as a crisis of the system itself. As major political leaders began using the judiciary to shield themselves and their associates from legal issues and irregularities, public trust in the institution has steadily eroded. Frequent political meddling with the judiciary during the implementation phase of the constitution could undermine confidence in the constitution itself. Therefore, political parties must be cautious, as such interference affects not just individuals but the entire judicial system.
International practice of judge appointment
For democracy to thrive, the judiciary must be independent and free from political influence.
17th-century French philosopher Montesquieu argued that when legislative and executive powers are concentrated in one body, independence cannot be maintained, and when the executive, legislative, and judicial branches are exercised by a single entity, democracy is hindered. This concept has been adopted by many democratic countries.
Since the constitution itself cannot exercise wisdom and judgment, there needs to be a development of constitutional culture and adherence to constitutional norms. Because the legislature makes laws, the executive may sometimes violate the constitution and laws or infringe upon individual rights. The executive, possessing both weapons and authority, can misuse power, making an independent judiciary necessary to prevent such actions.
Appointing judges by the legislature directly interferes with the principle of separation of powers and checks and balances, placing the judiciary under legislative control. When political representatives select judges, merit becomes irrelevant, which undermines judicial independence. Similarly, judges elected by popular vote must remain loyal to their voters, making impartiality difficult. Even appointments by executive order have not ensured judicial independence.
Therefore, the selection process for judicial officials must emphasize impartiality, independence, fearlessness, and individual qualifications, competence, experience, and conduct. The process and the laws governing appointments are crucial for judicial performance efficiency.
In the US, the President nominates Supreme Court justices, who must be approved by the Senate. This process often involves selecting candidates with similar political and ideological views. Despite the political nature of appointments, the judiciary operates independently.
For instance, Joseph Story was appointed as a judge at the age of just 32 in 1811. James Byrnes, appointed in 1941, did not have a higher education certificate but gained legal knowledge through self-study. Brett Kavanaugh, who was recommended as a Supreme Court judge in 2019, faced allegations of sexual misconduct from three women dating back three decades. However, after discussions in the Senate, it was decided that his past behavior would not affect his current judicial performance, and he was appointed after receiving majority approval from the Senate. There are also examples of foreign-born individuals becoming judges.
Supreme Court judges in the US are only dismissed under special circumstances or for misconduct, while experienced judges with 15 years of service and aged 65 or older can also be given responsibility in the Supreme Court.
After the US Federal Constitution was created, then-Chief Justice John Marshall in 1780 declared that the Constitution is the supreme law of the land, and it is the judiciary’s responsibility to uphold the supremacy of the Constitution. He asserted that even the President must operate under the Constitution. This interpretation strengthened American democracy and increased public trust that the President would not act against the country and its people. However, in 1857, then-Chief Justice Roger Taney’s interpretation that slaves could not be American citizens and that black people could not exercise the same rights as white people led to the American Civil War, causing great damage.
Consequently, although the US Constitution does not specify the age or qualifications of Supreme Court judges, it allows the President and Senate to determine qualifications as needed at their discretion. While the appointment of judges in the US appears to be purely political, it is claimed that there is no politicization within the courts, unlike in Nepal.
In the high courts of the United States and the United Kingdom, it is customary to appoint individuals as Supreme Court judges who have at least two years of experience as judges or have demonstrated exceptional expertise in the judicial field by practicing at the same level of court for 15 years.
In neighboring India, although the constitution emphasizes the importance of executive power in the process of judge appointments, the judiciary has prioritized the role of the Chief Justice in these appointments through its interpretations and actions. A collegium of four senior-most justices, led by the Chief Justice, recommend appointments to the President, maintaining independence from the executive. Similar collegium system is followed while appointing judges for the High Court.
In the British judicial tradition, individuals who have been associated with political parties, served as Attorney General, Members of Parliament, or Ministers are considered ineligible for judgeship. British society still believes that judges do not engage in corruption.
Policy for judicial appointments in Nepal
According to Article 129 (2) of Nepal’s Constitution, the Chief Justice is appointed by the President on the recommendation of the Constitutional Council, and other judges are appointed by the President on the recommendation of the Judicial Council. Articles 140(1) and 292(1) outline the appointment process for High Court judges and the parliamentary hearing requirement for the Chief Justice and Supreme Court judges. Article 129(4) specifies a six-year term for the Chief Justice, while Articles 131(b) and 142(1)(b) set age limits for Supreme Court and High Court judges.
However, in practice, there has been noticeable political interference in the appointments of the Chief Justice and justices in the Supreme Court judges, as well as High Court judges.
Balaram KC, former Supreme Court justice, says: “Individuals who have been MPs and ministers from political parties, presidents and officials of the Nepal Bar Association, Attorneys General, professors, individuals who have engaged in other businesses, amassed wealth abroad, or worked in influential law firms, and those who have failed to establish themselves in the legal profession are selectively appointed as judgesbased on connections, sometimes involving deals worth millions.”
This manipulation undermines the judiciary's role in validating decisions and protecting political power, leading to significant degradation of public trust. The Nepal Bar, acting as a subsidiary of political parties, has further complicated the issue. Political statements, boycotts, and other disruptive actions are pushing Nepal’s judicial system into a critical state. The Judicial Council and other authorities must address these issues to safeguard the integrity of the justice system.
