How Nepal’s laws are modified for personal benefits

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Author: Shaleen Shah

Series of events:
The Constitutional Council headed by KP Oli had sent recommendations for 38 employees for 11 constitutional bodies including the National Human Rights Commission and the Commission for Investigation of Abuse of Authority for parliamentary hearing.

However, the Speaker, Agni Sapkota returned the recommendations because he wasn’t present in the meeting during which the decision was taken. Later, Ganesh Prasad Timilsina, Chairman of the National Assembly, claimed that Sapkota didn’t have the authority to send back the recommendations without consulting him first.

However, on December 15, KP Oli had introduced an ordinance for the Constitutional Council Act-2010 (Function, Duties, and Procedures) and amended two provisions which allowed the council to hold a meeting if the majority members are present.

Thus, around 32 employees appointed to various constitutional bodies were administered oath of office and secrecy on February 3, 2021, even though speaker Sapkota was absent during the meeting.

Before the ordinance was passed, Clause 6 (3) of the Constitutional Council Act (Functions, Duties and Procedures) 2010 cited that at least five members must be present besides the prime minister for the Council to hold a meeting. Clause 6 (5) said that there need be a consensus before the Council takes decisions. Hence, one member’s absence could stop the Constitutional Council from holding the meeting.

However, the new provisions introduced through the ordinance, however, meant that even the presence of just three members, including the chair, was enough to convene the meeting and decisions could be taken based on majority.

Analysis:

The Kathmandu post reported constitutional experts citing the act of Oli introducing an ordinance to the constitution in order to appoint members to constitutional bodies as a “Machiavellian fraud” which disrupts checks and balances.

Oli’s ordinance allowed the Constitutional Council to bypass individuals such as Speaker Agni Sapkota and take decisions based on majority. This puts the essence of democracy at risk as few individuals can make decisions without consulting everyone involved.

This is not the first time Nepal’s laws have been modified to serve personal interests. The Nepal Trust Act, which concerns the ex-royal family’s property rights, was modified under Yeti Group’s influence in order to benefit the private group.

Hence, the procedures which are in place to modify laws, introduce ordinances, and amend the constitution may be reviewed, revised, and made more organized in order to prevent such problems in the future.

The tussle between different players trying to influence parliamentary procedures:
Case 1:

On December 25, around 45 provincial assembly members of Dahal-Nepal group’s Nepal Communist Party registered to file a vote of no-confidence against Chief Minister Dormani
Paudel.

According to Article 188 (4) of the constitution, one-fourth of the total number of assembly members may table in writing a motion of no-confidence against the chief minister. The motion will be endorsed if it is approved by majority members in the provincial assembly.

However, Bagmati Provincial Assembly Speaker Sanu Kumar Shrestha delayed the Assembly Provincial Meeting, and he has been criticized for doing so without consulting the deputy speaker and political parties in the assembly.

Case 2:

In the case of the Constitutional Council’s appointment recommendations to constitutional bodies, although KP Oli’s ordinance allowed the council’s meeting to take place with just majority members, Speaker Agni Sapkota sent back the recommendations, trying to oppose the council’s decision regardless of the ordinance. Later, National Assembly Chairman Ganesh Prasad Timilsina criticized Sapkota for taking such a decision without consulting him first.

Analysis:

In case 1 and case 2 respectively, Sanu Kumar Shrestha and Agni Sapkota both took some form of action in order to delay the respective processes. In both cases, the two received criticism for not consulting others before taking decisions—Shrestha from the deputy speaker and political parties, and Sapkota from National Assembly Chairman Ganesh Prasad Timilsina. Kathmandu Post also published a statement from Timilsina, in which Timilsina accused Sapkota of undermining the importance of the National Assembly. Although Sapkota’s attempt to send back the council’s recommendations failed—as KP Oli’s ordinance allowed the recommendations to be approved later anyways–Sapkota’s attempt to delay the process stood out.

Thus, it is clear that there are differences of opinion and motive from different players trying to influence laws in their favor, and each of them use relevant strategies in order to do so. Ultimately, the one(s) whose actions are in line with the relevant laws wins the tussle. However, if they are given the power to easily amend the laws themselves, then that removes the limit to what actions they can carry out. Therefore, it is important to review the procedures which are in place to modify laws, introduce ordinances, and amend the constitution to prevent such events from happening in the future.

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