The ordinance sought to amend the legal provision that allows the six-member Constitutional Council to make decisions by majority vote in the presence of five members including the chairperson, and to make a provision that allows decisions to be made by majority vote in the presence of four members including the chairperson.
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President Ram Chandra Poudel on Sunday sent back the ordinance amending the Constitutional Council (Works, Duties, Powers and Procedures) Act, 2066 BS. The President has returned the ordinance to the government for reconsideration, citing the main concern over the interpretation of the majority required in the decision-making process of the council.
The current act stipulates that the quorum for a six-member council is five (chairman and four members), decisions must be made on the basis of consensus, and if no agreement is reached in the first meeting, decisions can be made by majority in the next meeting. The ordinance, on the other hand, stipulates that if four people, including the chairperson, are present in a council meeting, a quorum is reached, and a majority of three people can make a decision.
President Poudel decided to send it back, saying that the new provision in the ordinance will weaken the essence of the majority system. President Poudel had also previously sent back the bill related to the Constitutional Council, which was sent in Ashar 2082 BS for verification after reducing the quorum and passing it through both houses on 8th July. The ordinance sent by the Sushila Karki-led government last November with a similar provision was also put on hold by the President.
The President's legal advisor Baburam Kunwar said that the ordinance was sent back by the President for reconsideration, keeping in mind past practices, Supreme Court decisions, and the democratic norms of the majority system. "A respected institution like the President should not take one criterion before and another now. The issue that the President was concerned about yesterday. Keeping that in mind, it has been decided to send it back to the government for reconsideration," he said.
There is a constitutional provision that the Constitutional Council, chaired by the Prime Minister, will have six members. The Council includes the Chief Justice, Speaker, National Assembly Speaker, Deputy Speaker, and the leader of the main opposition party. Among those currently on the council, Prime Minister Balendra Shah and Speaker DP Aryal are elected from the ruling Rashtriya Swayamsevak Sangh (RSS). The then Chairman of the National Assembly, Narayan Dahal, was elected from the Maoist (now NCP), while Deputy Speaker Rubi Kumari Thakur won from the Shram Sanskriti Party. The leader of the main opposition party is Bhishma Raj Angdembe of the Nepali Congress.
The bill passed by both houses of the federal parliament last year included a provision that decisions could be made by two people, including the Chairman and one member. If the Chairman and five members were in office, the Chairman and at least four members, the Chairman and at least three members, if the Chairman and four members were in office, the Chairman and at least three members, if the Chairman and three members were in office, the Chairman and at least two members, at least three members, and if the Chairman and two members were in office, the Chairman and at least two members, the Chairman and one member.
While returning the bill, President Poudel had raised questions about the interpretation of the majority. At that time, he had maintained that ‘decisions should be made by a majority of the total number of members’. While returning the bill, the President had said, ‘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 pillar of the decision.’
The President did not mention the grounds for returning the ordinance this time. However, he recalled the reasons given for returning it in the past in the statement. ‘In accordance with the constitution, the bill to amend the Constitutional Council (Work, Duties, Powers and Procedures) Act, 2066 was submitted for verification on 25 Ashad 2082 with a message, and the ordinance received as per the decision of the then Council of Ministers on 2 Mangsir 2082 has not been issued, and has been sent for reconsideration in the context of the contents of the ordinance related to the Constitutional Council, which has been recommended as per the decision of the Council of Ministers on 14 Baisakh,’ the statement issued by the President’s Office said.
Minister for Law, Justice and Parliamentary Affairs Sobita Gautam said that she had received information from the President that the ordinance related to the Constitutional Council had been returned, but the government had not yet received a letter stating the reason for the return. ‘The government will make public its further views after studying the reason for the return of the ordinance,’ she said.
The bill passed by the parliament last year stated that a quorum was reached if 50 percent of the members currently in office were present, but the ordinance sent now does not have such a provision, says Law Minister Gautam. ‘The bill at that time had paved the way for meetings to be held even when no one was in office, which the President had questioned and sent back. His comment was that a meeting of the Constitutional Council could only be held when all members were in office,’ she said. ‘This time, we have made provisions in the ordinance emphasizing that a meeting of the Constitutional Council can be held when all members are in office.’
Currently, more than a dozen posts are vacant in various constitutional bodies, including the Chief Justice. The government had brought forward the ordinance with the aim of making it easier to recommend appointments to those posts. ‘The government has not yet made a clear decision on whether to reconsider or recommend the same again after the President withdraws it,’ said a member of the Prime Minister’s private secretariat.
Legal disputes regarding the decision-making process of the Constitutional Council meeting have been recurring. During the KP Sharma Oli-led government, in 2077 and 2078, after the quorum was reduced in the act through an ordinance, the council had recommended 52 people to various constitutional commissions. Since the recommendations were made during the dissolution of the House of Representatives, there was no parliamentary hearing.
Despite withdrawing the Constitutional Council ordinance, President Poudel has already issued seven other ordinances that were recommended. The government had recommended eight ordinances last Monday, Tuesday and Wednesday. On Sunday alone, an ordinance was issued to amend some Nepal Acts. 20 acts have been amended through that ordinance. Before that, ordinances related to money laundering, universities, health sciences institutes, dismissal of public officials, cooperatives and public procurement had been issued.
Some Nepal Acts Amended by the Amendment Ordinance
1 Employees Provident Fund Act, 2019
2 Land Survey Act, 2019
3 Land Act, 2021
4 Education Act, 2028
5 Land Revenue Act, 2034
6 Technical Education and Vocational Training Council Act, 2045
7 Foreign Employment Act, 2064
8 Federal Parliament Secretariat Act, 2064
9 Contribution-Based Social Security Act, 2074
10 National Medical Act, 2075
11 Land Use Act, 2076
12 Forest Act, 2076
13 Insurance Act, 2079
14 Design Act, 2081
15 Citizen Investment Fund Act, 2047
16 Nepal Academy of Science and Technology Act, 2048
17 Academy Act, 2048
18 Civil Service Act, 2049
19 University Grants Commission Act, 2050
20 Health Service Act, 2053
