NATIONAL 3 -(Spotlight Weekly)

Debatable Role

Critics argue that the Constitutional Council challenges the authority of the executive

By KESHAB POUDEL

PM Koirala : Clipped authority ?

Following the differences over the nominees forwarded by Prime Minister, the meeting of Constitutional Council has been postponed for indefinite period. As the chairman of the council, Prime Minister called its meeting and submitted his nominee for the post of Commission for Investigation of Abuse of Authority (CIAA) Chief but since his nominee was not accepted by other members of the council, the meeting was postponed.

This incident, in itself, seems to be strange as a body which is neither accountable to the parliament nor to the people rejected the nominee of elected Prime Minister.

In the cabinet system of the government, as the leader of parliamentary party Prime Minister has the right to nominate executive officers in different institutions. Contradictory to the spirit, the Constitution of Kingdom of Nepal 1990 attempts to limit the authority of Prime Minister on such appointments.

According to the article 117 of the Constitution of the Kingdom of Nepal 1990, the Constitutional Council consists of the Prime Minister as the Chairman and the Chief Justice, Speaker of House of Representatives, the Chairman of the National Assembly and the Leader of the main opposition in the House of Representatives are its members.

The Constitutional Council is empowered to make recommendations in relation to the appointment of senior officials to each of the constitutional bodies. By exercising those powers, the Council makes important appointments which are otherwise within the scope of the executive.

It is very impractical, constitutional experts argue, to expect the Prime Minister to convince the Chief Justice, the leader of the opposition, the Speaker of the Lower House and the Chairman of the Upper House to pass the appointment of his nominee.

On appointments of persons in the constitutional bodies such as CIAA, past experiences have shown that the consensus expected by the constitution is seldom achieved. Certain give and take tricks have determined the appointments most of the times.

Prime Minister is held politically responsible for all the failings and misdeeds of the officials but he himself is put into an insignificant minority opinion.

"In my opinion, all such appointments should be made on the recommendation of the Prime Minister. The Prime Minister leads nation and national consensus through the mandate of elections and his recommendations reflect a kind of popular consent," said eminent constitutional lawyer Ganesh Raj Sharma.

"Prime Minister is accountable to the people more than any offices of the state because of the elections and because of his elective authority. The best method of appointment is on the recommendation of the Prime Minister. In the present method of constitutional council, the PM is one among five others in the recommending body. As a leader of the parliament, Prime Minister is held responsible for all failings and misdeeds of persons appointed into high constitutional post such as CIAA and others but practically the Prime Minister is helpless in the group of his advisories," Sharma adds.

Others, too, question the accountability of such institutions. "The system is inconsistent with the spirit of the parliamentary forms of government," said former Attorney General Motikaji Sthapit. "Since Prime Minister is accountable to the parliament for all his functions, other members are not accountable anywhere."

However, there are others who justify the present constitutional provisions. "The rationale behind the establishment of a constitutional council is to provide a check against power of the King and excesses of the executive. Following the events of 1990, the framers of the constitution thought that a body as representative as the constitutional council would ensure that appointees to constitutional bodies would be of the highest calibre and would not simply be supporters of the governing party responsible for making appointments from time to time, " state Dr. Surya Dhungel, Bipin Adhikary and Murgatroyd in their book on Nepalese constitution.

"Having experienced dictatorial rule in the years before 1990, the framers were acutely aware of the dangers of an elected dictatorship in which a government with parliamentary majority might be able to manipulate the structures of a fledgling democracy for its own end," the book further states.

Critics of the present provision argue that the system thus adopted is neither accountable nor democratic and say this will provide room for extra constitutional bodies to play.

Defenders, however, deny that the present system has curtailed the authority of of Prime Minister. "As the leader of the parliament, Prime Minister enjoys the lion's share of appointments under Article 117 in that he is the person who identifies, selects and proposes nominees for appointments. Duty of other members of the council is to ensure that he has made good selections, and to reject those proposed appointees that are not deemed to be suitable," say Dr. Dhungel and Adhikary.

Lack of legal mechanism is responsible for the recent controversy. "In absence of legal system, such controversies often appear," said Kashi Raj Dahal, Spokesman of the Supreme Court.

Under the prime ministerial system, curtailing the right of Prime Minister can not be justified. "Government is always responsible to the parliament and people. Main opposition party leader and chief justice are not accountable to the people," said advocate Sunil Adhikary. "Government represents the consent of the people. It is against the consent of the people to intervene in the governance by chief justice and main opposition party," said Adhikary. "The Council is against the spirit of prime ministerial system."

As Prime Minister is accountable to the people through the parliament, limiting his authority in the process of appointment creates further confusion as is presently happening in the country.