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CONSTITUTIONAL COUNCIL |
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CONSTITUTIONAL COUNCIL |
Suggestion, Not Rejection King Gyanendra’s
recent suggestions regarding the nominee to the Chief Elections Commissioner sparks
unnecessary debate By KESHAB POUDEL Is it a violation of constitution when
country’s head of the state suggests fixing certain criteria on the nomination to
important position? Being a head of state, King can suggest for improvement. But,
intellectuals and some self-proclaimed constitutional experts are terming the recent
suggestion by the constitutional monarch on the recommendation of chief elections
commissioner as unconstitutional. Leaked though leading media, the said
suggestion of the monarch have been construed as rejection. “If the King has no role,
why not the council itself appoint the nominees. In Japan, the parliament there appoints
the prime minister but here the King is constitutionally bound to appoint prime minister
who has majority,” said Mukunda Regmi, senior advocate and one of the members of the
Constitution Recommendation Commission that framed the current Constitution of the Kingdom
of Nepal 1990. The Constitution of the Kingdom of Nepal
1990 is based on the concept that ‘King can do no wrong’ but it has not made
monarch a mere rubber stamp. In recent suggestions made by the king, some constitutional
lawyers and intellectuals, particularly those inclined to the extremes, have played
politics and dragged the King to the controversy. “King does not have right to suggest
on the recommendation of Constitutional Council. King has to appoint the person
recommended by the Council,” said Sindhunath Pyakurel, president of Nepal Bar
Association. This is not for the first time when King
made his suggestions in the recommendation of Constitutional Council. Since the law
is yet to be passed setting the criteria for the selection process of the Council, there
is always room for such controversy. The creation of the Constitutional Council,
itself, was against the spirit of the model of parliamentary democracy since it curtails
the right of leaders of the parliament. Although prime minister has to bear all kinds of
responsibility for the appointment in constitutional bodies, he has to rely on the
Constitutional Council, which does not have to bear responsibility before anybody
regarding its function. Since the commission is just a
recommendatory body, it cannot appoint persons as per its wish. According to the
Constitution of the Kingdom of Nepal 1990, it is the King who has to appoint persons at
the constitutional bodies under the recommendation of the council. If the council does not have formulated
laws and its role is prescribed just as a recommendatory body, there is no sense to make
such a hue and cry terming suggestion as a violation of the constitution. “This may
be used as a political tool but cannot be made an issue of constitutional debate,”
said a lawyer. The constitution has not said how many names it needs to recommend. The
council can recommend as many number of names as it wishes. As long as there are lapses in
the laws, it will be difficult to prevent such controversies. There is nobody to verify the
council’s actions except Speaker of House of Representatives Taranath Ranabhat’s
statement before his party’s central working committee what really transpired at the
meeting of the Constitutional Council and how many names did the council recommend for the
position of one Chief Elections Commissioner. “The King’s proposal was merely a
suggestion, and it was not the rejection of Council’s recommendation. Had the King
violated the constitution by rejecting the recommendation, he would have appointed a
person of his own choice,” said a political analyst. Even the article 117 (3) clearly points
that the functions, duties, and powers of the Constitutional Council shall be as
determined by this constitution and other laws. Since there are no laws to govern the
council, there are rooms for suggestions. Had the laws clearly spelt out the
modalities of selection process, the King would not have forwarded his suggestions.
Since, previously all the appointment were made under majority basis and recommended by
the elected government, there used to be no disputes. But this time as the government is
not elected and there are possibilities of greater controversies and nomination of persons
with certain loyalties, the King had valid reasons to suggest. The Constitution of the Kingdom of Nepal
1990 clearly points out that no one can raise questions regarding the privileged
communication between the King and prime minister. In legal and constitutional term the
recommendation is not an appointment and it is a process where suggestions can be made in
case of certain disputes. Constitutional Council (1)There shall be a Constitutional Council,
for making recommendations in accordance with this Constitution for appointment of
officials to constitutional bodies, which shall consist of the following as chairman and
members (a)the prime minister – chairman (b)the chief justice – member (c)the speaker of the House of
Representatives – member (d)the chairman of the National Assembly
– member (e)the leader of the main Opposition of the
House of Representatives Member (2)For the purpose of recommendation of an
appointment of the Chief Justice the Constitutional Council shall include among its
members the Minister of Justice and a judge of the Supreme Court. (3)The functions, duties and the powers of
the Constitutional Council shall be as determined by this Constitution and other
laws. (4)The Constitutional Council constituted
pursuant to clause (1) shall have the power to regulate its working procedure on its own. |
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