It is learnt that the Negotiating Teams have failed to reach an agreement with regard to the composition of Constitutional Council (CC), which is one of the contentious issues left to be settled at the Seven-Party Alliance (SPA) meeting. No doubt, the issue of appointment to constitutional posts has been a matter of grave concern in almost all democratic countries. Every country has evolved its own mechanism to make such appointments acceptable to all those concerned, such as formation of a House Committee to approve the appointments made by the executive body or direct appointment without any approval by any authority. But, in Nepal a special provision has been made in the Constitution for making such appointments acceptable to all. The Constitution provides for a CC consisting of five members — Prime Minister as the chairman and Chief Justice, Speaker, Chairman of the Upper House and leader of the opposition in the Lower House as its four members.

The provision for the CC in the Constitution of Nepal, 1990, had apparently made it superior to other constitutions in the region as this concept was not only altogether new, but also more democratic, hence acceptable to all stakeholders in parliamentary politics. In my personal interaction with two former Indian chief election commissioners, namely, T. N. Sheshan and Dr. Gill, I gathered that they appreciated this provision. Of late, there has been a popular demand for such type of recommending body in India from different quarters, including some ex-election commissioners. It is learnt that serious deliberations are afoot in India for the formation of a six-member body consisting of Prime minister, Chief Justice, and Speaker of the Lower House, Chairman of the Upper House, plus Leader of the Opposition in both Lower and Upper Houses.

During the last fifteen years of parliamentary exercise in Nepal, we find that constitutional bodies like the Election Commission, the Public Service Commission and the Commission for Investigation of Abuse of Authority have, more often, had varied numbers of members as nothing is mentioned in the constitution in this regard. Hence, the numbers vary from one to six. Most often, these bodies have even number of members, in opposition to the general belief in odd numbers, which facilitates decision-making when there is disagreement on some points and voting is required.

The Election Commission was a three-member body in 1990. It remained so till the first parliamentary election in 1991 under the new Constitution. But with the demise of one of its commissioners and dismissal of another member due to the lack of constitutional backing, there remained only the Chief Election Commissioner. But he too did not continue there for long as he was appointed ambassador to the United Kingdom in 1992.The Election Commission was without any commissioner for about six months. A new Chief Election Commissioner was appointed in early 1993. The EC remained a one-member body till the House of Representatives was dissolved and the mid-term elections were called for in mid-1994. At the time of the mid-term elections, it was made a five-member body. After two years, it was again reduced to four when one of the commissioners retired on the grounds of old age. This was followed by the death of another member, resulting in a three-member body. Suddenly, in 1997 the change in government led to three new appointments in the EC, making it a six-member body at a time when there were no chances of polls. This makes clear the callousness of the leaders towards constitutional bodies. Not only the EC, but the Public Service Commission and the CIAA too, were made six- and four-member bodies respectively with the induction of three members into each body.

The past experience with the functioning of the CC shows that except one or two Chief Justices — the Chief Justice is an ex-officio member of the CC — no one could dare oppose the names suggested by the Prime Minister for the constitutional posts even while there were plenty of better candidates around. They lacked the guts to speak their mind in front of the PM. Similarly, the Speaker of the Lower House, if he was a member of the party in power, could not have an independent say in the recommendation to such bodies. In case the Speaker belonged to another party, he got one-fifth of the share of the posts for which recommendations were made. In short, constitutional posts were shared among the members of the CC.

In view of the ineffective functioning of the CC, it is an opportune time to think over its continuation in the interim constitution. Since the present House of Representatives has already started the hearing by the House Committee for the appointment of the Election Commissioners, the functioning of the CC is not only duplicating the recommending process, but proves it redundancy as well. Hence the provision for he CC should be done away with immediately.

Prof Mishra is a former election commissioner