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.