‘Government cannot scrap constitutional appointments’

KATHMANDU: The Sher Bahadur Deuba-led government has recently decided to recall the ambassadors appointed by the erstwhile CPN-UML Chairman KP Sharma Oli led government. Following the government’s decision, the issue became a topic of discussion among the people.

The Oli-led government had filled the posts lying vacant for a long time through an ordinance. At that time, the then main opposition party’s President Deuba had also supported the Oli-led government’s decision to make the appointments.

Leaders close to Deuba including former Inspector General of Nepal Police (IGP) also got the appointments in various commissions like Commission for the Investigation of Abuse of Authority (CIAA).

It is not easy to recall the office bearers of Constitutional Council (CC) like that of ambassadors. The office bearers appointed by the President with recommendation of CC cannot be scrapped by the Cabinet.

According to the Constitution, the posts in the Constitutional Council will lie vacant if the impeachment motion is filed against the officer bearers and office bearers submit resignation letters to the President among others. Else, there is no provision to remove them from the posts for six years.

The party should have two-thirds majority in the Parliament to remove the office bearers by filing the impeachment motion. In the current situation, none of the party has two-thirds majority expect the CPN-UML.

Constitutionalist Bipin Adhikari said, “Neither the government can appoint office bearers at the Constitution Council nor it can recall them. The appointments made by the President on the recommendation of Constitution Council cannot be revoked by the government.”

Meanwhile, a writ petition filed against the appointments made by the Constitutional Council is currently under consideration. The constitutionalists have pointed out that the Supreme Court can declare the appointment process illegal and can dismiss it.

Adhikari said that the Supreme Court can only settle the dispute pertaining to the appointments at the Constitutional Council.

“The case is pending at the Supreme Court. There is a high possibility that the Supreme Court will dismiss the appointments as the erstwhile government had made the appointments through the ordinance by amending the Constitution,” he said, adding, “The government does not have the rights to amend the Constitution.”

Earlier, there was a provision that a five-member constitutional bench can only take the decision. Later, the government amended the provision through the ordinance and decided that a three-member constitutional bench can take the decision.

Adhikari said that the Supreme Court has a strong basis to scrap the ordinance. Even if the Supreme Court scraps the ordinance, the decision made by the Constitutional Council will be implemented.

Another constitutionalist Chandrakant Gyawali also said that the Supreme Court’s verdict pertaining to the issue of Constitutional Council will be the final decision.

“A member of the Constitutional Council and Speaker Agni Sapkota and Om Aryal have also filed the case at the Supreme Court,” he said.

The Constitution should have settled this dispute raised after the incumbent government scrapped the ordinance issued to make the appointments at the Constitutional Council.

Supreme Court Chief Justice Cholendra Shumsher JB Rana himself is involved in the appointment recommended by the Constitutional Council. He has appointed his loyals and relatives at the National Human Rights Commission and Election Commission among others.

Meanwhile, if the court delivers the verdict against the appointments at the Constitutional Council, it will create a new problem. A six-member Constitutional Council should take a decision for the new appointments.

There is a provision that the Prime Minister, Chief Justice, Speaker of the House of Representatives, Deputy Speaker, Chairperson of the National Assembly and leader of the main opposition should be the members of the Constitutional Council.

Deuba as the President of the then main opposition Nepali Congress and Speaker Agni Sapkota had halted the appointments for a long time. In the same way, no one can take the guarantee that the main opposition CPN-UML Chairman KP Sharma Oli will not do the same.

There is a slim chance that Oli will pave the way for the new appointments at the Constitutional Council. If that happens, the posts at the Constitutional Council will lie vacant for a long time or Deuba should bring the ordinance to fill the vacant posts like Oli did in the past.

Constitutionalists have been raising their voices since the government issued an ordinance pertaining to the Constitutional Council.

A meeting of a three-member bench of Constitutional Council held on December 15, 2020 had recommended 35 persons for the various posts in Constitutional Council. Out of 35, 32 had taken the oath of office and secrecy.

The Constitutional Council on May 3, 2021 had appointed 20 persons in 11 constitutional bodies. They have already assumed the office after taking the oath of office and secrecy on June 24.

Earlier, the 35 persons, who were recommended in various constitutional bodies through the ordinance on December 15, have also assumed the office.

According to Article 284, the Constitution has given rights to the President to appoint the officials in various constitutional bodies on the recommendation of the Constitutional Council.

The Constitutional Council should make a recommendation for the appointments in accordance with the Constitution a month before the positions fall vacant.