Constitutional Bodies In Democracy
The Constitution of Nepal 2015 provides for several constitutional bodies and commissions which have their own value and importance. Some of the commissions, like national human rights commissions, Muslim Commissions, National Women Commission, and Dalit Commission have their human rights and social justice objectives. But the constitutional bodies and public oversight agencies, like Election Commission and Public Service Commission are very crucial for the functioning of a democratic polity. But in order for them to function effectively, these bodies need to be sufficiently staffed and adequately sourced.
However, in Nepal no matter the constitutional stipulation and provision, the bodies have not been fully manned and equipped. The constitutional bodies, such as Commission for Investigation on the Abuse of Authority (CIAA), Auditor and Comptroller General and Public Service Commission remain starved in terms of facilities and human resources. As a result, their performance is far from being satisfactory and competent. This has jeopardised and impacted negatively on governance and institutional performance in the country.
The Election Commission is one of the vital institutions for sustenance of democracy and promotion of clean electoral process but the body is compelled to give in to the pressure and diktats of the government. In a way, the Election Commission has to be credited for having successfully undertaken the ambitious task of conducting elections for local, provincial and federal parliament. This has raised the value and credibility of the Election Commission.
The international community has also appreciated the way Nepal was able to handle the difficult task of conducting elections in a smooth and peaceful manner. Moreover, what needs to mention is the fact the provision of the photo based voter identity cards that were made available to all the bona fide adult Nepalese voters contributed to resolve many of problems and challenges associated with free and fair elections. However, mention in this context must be made of the weakened situation of CIAA. Apprehensions abound that the CIAA would go dysfunctional especially due to perceived political threats should it dare to act against the established political leaders and authority especially on the cases regarding the abuse of the authority
Moreover, the most important part in making the constitutional commissions and bodies functional and competent is the way the commissioners and officials in these agencies are appointed and nominated .This point has been sought to be emphasised especially due to the fact that at least seven constitutional commissions are due to be manned with commissioners and members through appointments pursuant to the provision of the new constitution. The relevant laws have been formulated pursuant to the provision of the constitution. However, it is dismaying to note that the political affiliation and loyalty tend to count most in the appointment for high level posts of the constitutional bodies, including the Election Commission, Public Service commission, National Human Rights Commission and so on. Though the constitutional Council (Sambaidhanik Parishad) comprising the prime minister and leader of the opposition is in place according to the constitution to recommend to fill the posts in some of the bodies, this has allegedly been reduced to a forum in which the ruling and the opposition parties tend to bargain over spoil sharing.
The similar provision had existed in the repealed Constitution of the Kingdom of Nepal 1990 and the Interim Constitution 2007 but this was reduced to a farcical proposition due also to political bargaining and cartelisation of posts and recruitments. The similar story is also repeated in this republic era of Nepal. The practices guided by favouritism and nepotism to select and appoint the commissioners and officials for the constitutional bodies and authorities tend to go unabated.
However, of late, public notices were issued on behalf of the Constitutional Council soliciting submission from the potential aspirants for the posts of such constitutional bodies to reverse and improve the situation. The aspirants and potential candidates were asked to provide the strategies that they would adopt and execute if they were selected for filling the vacated posts in the constitutional bodies. This move was novel and innovative as the selection process could be made expectedly free from political meddling. And the competent and independent persons will have an opportunity to man the responsible positions of the constitutional bodies. However, the process has been halted and never pursued again as the politicians bent on using patron-client practices in such appointments could subvert and circumvent the tradition.
It is a matter of utmost importance to take steps to fill the position in the constitutional bodies in accordance with the due and judicious selection procedures so as to allow them to function in strengthening their oversight capacity to impart effectiveness in their performance. However, the political bickering especially guided and motivated by the partisan interests and motives do come on the way of finding consensus on the proposed names or tentative list of the persons to be appointed for the posts. It had occurred in the past that the leader of the opposition failed to attend the meeting of the constitutional council called to take decision on the appointments for the constitutional bodies. This time it is expected that the situation will be expectedly different from the past because of the different political combination and presence of the government enjoying majority in the parliament.
For making democracy functional, the constitutional bodies should remain independent, and they should be provided with competent human and fiscal resources to exercise their authority to enforce checks and conduct vigilance over the functioning of the government. For example, if the Election Commission is not independent and competent, it is not possible to imagine the free and fair elections. Similarly, an independent Public Service Commission is required for the recruitment of merit-based civil bureaucracy. The government should set new precedents to strengthen the capacity and credibility of the constitutional commissions and bodies to make democracy work in line with the popular aspirations.