The government has recommended an ordinance to President Ram Chandra Poudel by amending the Act 2066 BS, which was made to make provisions for the Constitutional Council (Work, Duties, Powers and Procedures), to allow decisions to be made by three members including the Chairperson. According to an official at Sheetal Niwas, the ordinance has been brought by amending the provisions related to the quorum and decision-making process mentioned in Section 6 of the Act and the provisions related to parliamentary hearings in Section 7.

The official said that the ordinance recommended by the government to the President on Monday night includes a provision that four members including the Chairperson are considered a quorum and that decisions can be made by a majority of three members.

The proposed ordinance also amends the provisions of the Joint Meeting of the Federal Parliament and the Joint Committee (Operations) Regulations, which stipulate that parliamentary hearings are not required if the office-bearer is recommended more than 45 days after the appointment. According to sources close to the President, the ordinance includes a provision that parliamentary hearings must be mandatory before the appointment.

It seems that the government is trying to amend the law through an ordinance to speed up the appointment process of more than a dozen vacant constitutional body officials, including the Chief Justice. But the precedent set by President Poudel in the past has created a moral crisis in issuing an ordinance.

‘There is something different from what was passed by the then parliament, there is no example in it that two people can make a decision, there is even a provision that at least fifty percent of the members can make a decision,’ the official told Kantipur. ‘Among the various grounds taken when the President sent the bill back, there was also an opinion that a decision should be made by a majority of the total number of members. No conclusion has been drawn on what to do now.’

The Constitutional Council, chaired by the Prime Minister, consists of six members, including the Chief Justice, Speaker, Deputy Speaker, Speaker of the National Assembly and the leader of the main opposition party.

The bill, which the government registered in the House of Representatives on 12 Falgun 2079, was passed by both houses and sent to the President for certification on 11 Asad.

The President had sent the bill back to the House of Representatives, where the bill originated, on 8th Shrawan, along with five grounds. Point 4 of which states that the President should recommend the Constitutional Council unanimously and make a decision by at least a majority.

‘If there is no consensus, the majority of the total number should not be overshadowed in any way and the basis of the majority should be considered the final basis for the decision,’ the President had said, stating the basis for sending the bill back, ‘The amendment bill, which refers to the provision of Section 6 of the Act without any rational basis and reason, refers to any special situation and recognizes the decision made on behalf of the Council by only the members who can remain when at least fifty percent of the Chairman and the current members are present, automatically means a minority, so it is necessary to reconsider the bill that has such a provision.’

At that time, the bill also included four examples of quorum and decision-making process. In which, if the council has a chairperson and five members, a decision can be made by the vote of at least four, including the chairperson and at least three members; if the chairperson and four members are present, a decision can be made by the vote of at least three, including the chairperson and at least two members; if the chairperson and three members are present, a decision can be made by the vote of at least two, including the chairperson and at least two members; and if the chairperson and two members are present, including the chairperson and at least one member.

The then Sushil Koirala-led government had recommended the ordinance by including the same provision in the bill sent by both houses of parliament. Even then, the President had stopped the ordinance without issuing it. The ordinance proposed by the government now has a provision that a decision can be made by at least three members, including the chairperson. The President's Press Advisor Kiran Pokharel said that the ordinance was made during the study.

Section 6 (3) of the main act on the Constitutional Council provides that a quorum is considered to have been reached for a meeting of the council only when the chairperson and at least four members are present. Sub-sections 4, 5, 6 and 7 of the same section 6 contain provisions regarding the decision-making process. It provides that a decision can be made by a majority of the total number of members only if two meetings for consensus are not successful.

The then prime ministers have been manipulating the provisions of the Act by issuing ordinances according to their convenience. In particular, the recommendation of 52 office bearers of constitutional bodies by the then Prime Minister KP Sharma Oli in 2077 BS by amending it to his liking is at the center of the most criticism. At that time, the position of Deputy Speaker was vacant. Oli had brought an ordinance to make it easier to make decisions in the absence of the then Speaker and the leader of the opposition party. The ordinance was brought so that even if only the Speaker and two members are present, a meeting can be held and only two people can make decisions.