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On Tuesday, President Bidya Devi Bhandari swiftly issued Constitutional Council Ordinance-2020 (first amendment), which revises the existing procedures of the Constitutional Council (CC), the body responsible for appointing members to constitutional bodies. Shortly after the ordinance amendment proposal was forwarded to Sheetal Niwas, the president’s office, by Prime Minister KP Sharma Oli, the head of the state endorsed the ordinance immediately. This has paved the way for the Prime Minister, who heads the six-member Council, to  recommend members to constitutional bodies even without the presence of the speaker, deputy speaker, and main opposition leader.   

PM Oli, who had called a meeting of the council on Tuesday morning, later deferred the meeting for the evening and tabled the amendment proposal after Speaker Agni Sapkota did not attend the meeting. Sapkota, who was also elected from the ruling Nepal Communist Party (NCP), represents a rival faction led by the NCP’s other party chair, Pushpa Kamal Dahal ‘Prachanda’. Because the internal feud within the party has reached boiling point–fueled primarily by the issue of whether Oli should be removed from his prime ministership–Prachanda had reportedly advised Sapkota to skip the meeting. Oli is all too familiar with the frequent absence from council meetings by representatives from the main opposition and non-cooperation from ruling party leaders who represent the faction opposing him in his own party. The council has thus not been able to appoint 45 members of 11 constitutional bodies, including the head of the anti-corruption agency, the Commission for Investigation of Abuse of Authority, for years. 

The Constitutional Council Act had envisioned that the council would comprise the prime minister, chief justice, Speaker of the House of Representatives, Chairperson of the National Assembly, leader of the main opposition party, and Deputy Speaker of the House of Representatives. The presence of the chairman and four other members was mandatory for making appointments to constitutional bodies. Oli has not been able to make appointments also because the position of deputy speaker has lain vacant ever since Shiva Maya Tungbahamphe was appointed Minister for Law, Justice and Parliamentary Affairs and because the speaker and the main opposition leaders have often refused to attend the council’s meetings.

Furthermore, leaders of both the ruling and main opposition parties had also been demanding a  bigger say in the  appointing of commissioners. Further, the main opposition–the Nepali Congress–has made claims on the post of the deputy speaker, to bolster its influence in the  constitutional council. 

Ostensibly, PM Oli was forced to take this ‘drastic step’ because he needed to have in place a functional process for  appointing members to the constitutional council. With the endorsement of the ordinance, PM Oli can now appoint commissioners on the consensus of the majority of members attending the council meetings. 

But the council was also mired in a stasis owing to the deepening internal crisis in his own party, wherein influential leaders were lobbying to appoint cadres loyal to them as members of the constitutional bodies. Oli can now appoint his lieutenants to posts in the constitutional council as per his wish and silence opponents in the party and outside of it.

But legal experts worry that members of constitutional bodies appointed through backdoor channels will continue in their position even if the prime minister’s move is challenged at the Supreme Court and even if it decides against the government. They also fear the court may  not go against the government since the chief justice also attends the meeting as a member of the council. The apex court rarely goes against the decision made in the presence of the judiciary head. 

“This may drag the judiciary into a controversy, and people will raise questions,” said constitutional expert Bhimarjun Acharya, in an interview with nepalkhabar.com. “I sense that today’s event could invite a constitutional crisis and political turmoil in the days to come.”

Leaders, including those from Oli’s own party, and legal experts have questioned the PM’s intent behind introducing the ordinance instead of following the regular parliamentary process to formulate the law. They have termed Oli’s move “unconstitutional” and “the beginning of authoritarian rule”in the country and called on Oli to scrap the ordinance without further delay.  

An emergency meeting of the NCP’s secretariat body, the apex body in the party, organised at Dahal’s residence, had also demanded that the ordinance be scrapped. 

“Introducing such an ordinance without any consultation and discussion and without informing the party is a totally objectionable move,” said the party’s secretariat member and former prime minister Jhalanath Khanal. “We regard this as a serious matter.”

This is not the first time Oli has undermined the parliament. In April, the Oli administration issued two ordinances, including one related to appointment of constitutional members. But the ordinances, which were swiftly endorsed by the President, were scrapped following widespread criticism in the party. 

The parliament, which was postponed days before the country went into lockdown, hasn’t resumed yet. In that span, Oli has been running the country by introducing ordinances one after another. And President Bhandari, whom many consider a rubber stamp of the prime minister Oli, has been endorsing them without any further questions. 

Opposition leader Sher Bahadur Deuba declined to attend the Constitutional Council meeting. “It is ridiculous to use the absence of the speaker as an excuse and keep the deputy speaker position vacant in order to postpone the scheduled meeting. It is undemocratic to bring the ordinance, instead of calling a parliamentary session. This move has revealed the totalitarian tendencies (of the PM). The Nepali Congress is against this,” Deuba wrote on Twitter. 

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