What Does the Ordinance on the Constitutional Council Submitted to the President’s Office Include?

April 29, Kathmandu – The government has submitted an ordinance pertaining to the Constitutional Council (its functions, duties, and powers) to the President’s office, enabling decisions to be made with the agreement of only three officials.

According to sources close to the Prime Minister and Council of Ministers’ office, the ordinance has revised the quorum and the number of members required for decision-making.

As per Article 284 of Nepal’s Constitution, the Constitutional Council is formed under the chairmanship of the Prime Minister and includes the Chief Justice, the Speaker, the Chairman of the National Assembly, the Leader of the Opposition party, and the Deputy Speaker as members. If the Chief Justice’s position is vacant, the Minister of Law replaces the Acting Chief Justice as a member.

This article states that “Other functions, duties, and powers of the Constitutional Council as well as the procedures for appointing the Chief Justice or heads or officials of constitutional bodies shall be as provided by federal law.”

Under the previous act, the council had six members. A quorum was achieved with four of these members, including the Prime Minister. Initially, the law required a unanimous decision; if not possible, then decisions would be reached by consensus at a second meeting.

If consensus still could not be reached, the decision would be made by majority vote of all council members. Although the Oli government issued multiple ordinances to amend the act, the bills were never passed by Parliament, leading to legal gaps.

Currently, the government has submitted an ordinance that proposes the decisive opinion of three officials, including the Prime Minister, regarding decisions of the Constitutional Council. Previously, the majority of all six members (i.e., at least four) was required for valid decisions.

Regarding the council’s current composition, Prime Minister Balendra Shah and Speaker Dol Prasad Aryal are affiliated with the Rastriya Swatantra Party. The National Assembly Chairman Narayan Prasad Dahal comes from a Maoist background.

Only two days ago, the Leader of the Opposition, Bishma Raj Angdambe, comes from the Nepali Congress, and Deputy Speaker Ruby Kumari is an elected MP from the Labour Culture Party, whose chairperson, Harka Sampang, often delivers harsh critiques of the government’s activities.

Among the council’s six members, Dahal, Angdambe, and Ruby Kumari are opposition members. The Chief Justice, who attends the council, is usually expected to remain neutral, meaning the Prime Minister could be in the minority regarding his proposals. Even if the Chief Justice supports the proposal, the votes between both sides might be evenly split. According to officials familiar with the ordinance, “The ordinance was issued aiming to amend quorum procedures based on this very dynamic.”

The Federal Parliament had also passed a bill concerning the Constitutional Council in late February 2023 (Falgun 2079) and sent it to the President for certification. However, President Ramchandra Paudel returned it for reconsideration, stating that allowing decisions by minority opinion was not in compliance with the constitution. No further progress occurred since then.

Currently, there is no legal obstacle to unanimous decisions in the Constitutional Council. However, legal uncertainty persists regarding which proportion of dissenting votes is considered decisive if consensus is not reached. The government concluded that delays occur in calling meetings under the existing law, hence it plans to move forward through the ordinance route.