The supremacy of the Prime Minister (executive) in the Constitutional Council sparks debate

On June 3, Ramhari Khatiwada, chairman of the Committee on State Affairs and Good Governance, 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 adopted the bill on the same day unanimously, containing a provision that decisions require the consent of the Prime Minister.

Work on the act was delayed due to disputes between political parties regarding the possibility of the Council making decisions without the Prime Minister’s consent in the absence of legal provisions regarding the Constitutional Council.

Why was the bill introduced?

According to Khatiwada, the bill was necessary to resolve the dispute between the Congress and UML parties over the Prime Minister’s approval of the Council’s decisions. The committee has decided to submit a report to Parliament amending the Constitutional Council (Functions, Responsibilities, Powers and Procedures) Act, 2066.

The draft law provides that decisions may be taken by the Constitutional Council if its chairman and at least 50% of its members are present. Earlier, when the Congress-Maoist alliance was in power, the UML, then the main opposition, insisted that decisions could be made without the prime minister’s consent. However, with the formation of the UML-Maoist-RSP ruling coalition, the UML abandoned this position. The Constitutional Council consists of the Prime Minister as chairman, the President of the Supreme Court, the Speaker, the Speaker of the National Assembly, the Leader of the main opposition party and the Deputy Speaker. The bill provides that a quorum for a meeting of the Council is achieved if the Chairman and at least 50 percent of the members present are present. If unanimity cannot be achieved, the decision will be taken by a majority vote of the Chairman and at least 50 percent of the members present.

Expert opinions

Former chairman of the Public Service Commission Umesh Mainali stressed 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, president of the Nepal Bar Association, criticized the bill for undermining the balance of power by subjecting constitutional bodies and the judiciary to executive control. He stressed the need for the Council to remain independent and free from political manipulation.

Constitutional expert Bhimarjun Acharya warned that passing a law allowing the executive to dominate Council decisions would weaken the judiciary and other constitutional bodies, violating the balance of power.

Senior advocate Dinesh Tripathi echoed these concerns, stating that the bill disturbs the balance of power and turns the Council into a vehicle for political negotiations and personal appointments.

Policy of the Constitutional Council

In 2077 BS, in the face of disputes within the then ruling Nepal Communist Party (NCP), the government led by KP Oli dissolved the parliament and appointed 52 officials to the constitutional bodies. These nominations are currently being considered by the Supreme Court, raising questions about the legality of the Council being used for political purposes by both the ruling and opposition parties.

History of the Constitutional Council in Nepal

The Constitutional Council was first introduced in the BS Constitution of 2047 to ensure democratic nominations to key state bodies. The 2063 BS Interim Constitution continued this provision after the fall of the monarchy. Before BS 2047, appointments were made by the king based on recommendations from the cabinet.

Provisions of the Constitution of 2015

The 2015 Constitution stipulates that nominations to constitutional bodies must comply with the principles of inclusion and maintains a Constitutional Council chaired by the Prime Minister. The Council is composed of high-level officials and parliamentary hearings are required for nominations.

Working mechanism

The Prime Minister, as chairman, convenes Council meetings, giving members 48 hours’ notice. If consensus is not reached, the meeting is suspended and a new one is convened. If an agreement is still not reached, decisions are made by majority vote and parliamentary hearings of the recommended candidates are held. The President then appoints the approved candidates.

Meaning

Experts emphasize that the Council was established to ensure the representation of all state authorities, maintaining the separation and balance of powers. Constitutional expert Adhikari says the council’s recommendations are more democratic than those of the cabinet itself.

Application

The Constitutional Council (First Amendment) Act 2081 is controversial because it requires the Prime Minister to assent to the Council’s decisions, shifting power to the executive. Although the bill aims to resolve political disputes, it has faced criticism for undermining the independence of the courts and the constitution. Historically, the Council was designed to ensure balanced appointments across all state branches. However, recent political maneuvering has questioned his impartiality, raising concerns about maintaining power separation in Nepal’s governance structure. The necessity and structure of a Constitutional Council continues to be a subject of political debate and judicial review in Nepal.