Constitutional Commissions: Search For Visible Role

At a time when some constitutional commissions are struggling to demonstrate their visible presence by exercising their enormous constitutional powers, Chief Elections Commissioner Dinesh Kumar Thapaliya has revealed how studies conducted by Niti Foundation helped them to make the commission’s function effective and strong

Oct. 4, 2022, 8:19 a.m. Published in Magazine Issue: VOL. 16, No. 06, Oct.21,2022 (Kartika 04. 2079) Publisher and Editor: Keshab Prasad Poudel Online Register Number: DOI 584/074-75

Despite enormous constitutional power provided by the Constitution of Nepal to defend democratic rights and inclusion of minorities, and marginalized communities, some Constitutional Commissions are unable to show effective presence in their own constituencies.

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CEC Thapaliya

However, Chief Election Commissioner Thapaliya said that two studies conducted by Niti Foundations, a Nepali non-profit organization engaged in strengthening Nepal’s policy process through collaborative research, innovative policy adoption, and enhanced policy choice, focusing on various aspects of The Elections Commission have supported immensely to bring a big change in its role in the last local elections. He said that more policy implementation at hand for the forthcoming Federal Parliamentary and Provincial Legislature elections.

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Addressing an interaction Program recently on The Role of Constitutional Commissions in Constitutionalism and Democracy, chief election commissioner Thapaliya said that the two studies were the first of their kind showing us several policy-related issues of election management.

Addressing the workshop organized by the Niti Foundation, he mentioned that a study entitled Placing the strengthening of democracy at the heart of the Election Commission’s agenda helped them a lot to modify the key components of the elections like the implementation of Code of Conduct, voter list collections and management of boots and candidate expenditure. All of these elements are vital to ensure free and fair elections.

“The study conducted by Niti Foundation focusing on the Commission’s capacity, capability and functions related to the elections management helped us to bring some major changes in the election process. In the last local elections, we changed some of the modalities and procedures as per the recommendations. With realization of constitutional and legal rights, we strongly enforced the Code of Conduct to make the elections process free and fair,” said Chief Elections Commissioner Thapaliya. “We can share such practices with other commissions as well.”

“The studies and research conducted by the Foundation guided us to strengthening our capacity and exercise our constitutional rights and interpret the laws. On the basis of the research studies, we have taken some reform measures in the last local elections and it will continue in coming elections,” said Chief Elections Commissioner Thapaliya. “Foundation’s study helped the elections commission to function as the independent and autonomous constitutional body not a shadow of the government. “ Still the commission does not have the right to announce the election date, let’s have more such study and research, the commission is ready to work with Niti.”

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“I would like to request Foundation to make further study so that other unclear issues can be addressed. My perception is that not only the role of individual constitutional bodies but also to take intense study on the role, responsibilities and inter commissions relations. It will further highlight and bring more clarity to our roles, responsibilities and accountability issues. Although the report has widely dealt with this, I would like to suggest that Niti make the second round of study and research more intensively on the relations and role of the commissions. After the elections in November, we will have more free time to closely work to bring reform in the elections and elections management process,” said Chief Elections Commissioner Thapaliya. Thapaliya said that the current trends of regular informal meetings among all constitutional commissions will bring some positive results.

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The Constitution of Nepal has created 13 Independent Constitutional Bodies including seven traditional Elections Commission, Commission of Investigation of Abuse of Authority, Public Service Commission, Auditor General, National Human Rights Commission and National Natural Resources and Fiscal Commission Constitutional bodies included in Part 27 of the 2015 Constitution of Nepal, known as ‘Other’ Commissions National Women Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Tharu Commission, Madheshi Commission and Muslim Commission

As Elections Commission and other regular commissions, Nepal’s ‘Other’ Commissions are critical actors in the constitutional framework to ensure the rights of specific minority and historically marginalized groups in the country.

It is essential to explore their new constitutional role in federal Nepal to see how they can affect societal and legislative reform for these groups. This note was commissioned with this purpose.

Mohan Das Manandhar

The recently concluded study on other commissions overviews the history behind the formation of the ‘Other’ Commissions; the mandate of these commissions; their performance; and the challenges they face for effective delivery of their mandates. This note also provides strategic recommendations for future engagement by the ‘Other Commissions’ to ensure effective fulfillment of their mandates going forward.

“We hope that this note is a useful baseline for further consideration of the role of the ‘Other’ Commissions to ensure justice, equity, and inclusion in federal Nepal,” said Mohan Das Manandhar, Executive Director of Niti Foundation.

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“The Constitution of Nepal 2015 provisions for 13 independent constitutional bodies, each with specific mandates. These bodies are designed to be independent of the other branches of government and together are meant to serve as a check on the executive and make it accountable towards fulfilling the promises made to the Nepali people in the Constitution,” said Manandhar.

“As they do not neatly fit into the traditional tripartite division of the executive, legislature and judicial branches of government, these kinds of independent bodies are sometimes referred to as ‘fourth branch’ institutions. They are thus envisaged to play important roles to ensure the development and sustenance of the rule of law, an egalitarian society, social justice, social and cultural solidarity, federalism, multiparty democratic governance, civil liberties, fundamental rights, human rights, adult franchise, and periodic elections.”

Conducted by Niti Foundation and prepared by constitutional lawyer Dr. Bipin Adhikari, the recently presented study disclosed that constitutional commissions despite their constitutional roles and responsibility. Dr. Adhikari in his presentation highlights the areas of his study and presented views on where there need interventions.

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“For the last 12 years, Niti Foundation has been conducting research and studies on various aspects of policies and trying to show what kinds of policy there require. We have made several diagnostic studies. We visited provincial governments and local governments to observe the role of constitutional commissions,” said Manandhar. “However, our study has shown that Constitutional Commissions are yet to show their presence at the local level and provincial level.”

In his statement, Chief Elections Commissioner Thapaliya has made it clear that the local governments should take responsibility for voter list updates, collections and voter education.

“I have already urged local level governments to take the responsibilities working in close collaboration with our district election offices,” said Thapaliya.

In this context Executive Director Manandhar has made it clear that there need to make the policies public. The idea of the public is very weak in Nepali. The word is used for the long time or period of Rana. However, they rarely reach the public.

“Although the policies are implemented to address the concern and problems of the people, they have never been part of public or citizens,” said Manandhar. Nepal’s key problems at the policy level are a misinterpretation of spirit of word public, representation and implementation,” said Manandhar. “In the context of constitutional bodies

“Constitutionalism and democracy are the important elements safeguarding and protecting the sovereign rights of people. The key problem in the policy-making is public, representation, implementation and accountability,” said Manandhar.

Without periodical elections, a constitution cannot function. However, it alone cannot make the political system inclusive. To make the process inclusive, proportional representation is one of the key elements. Proportional representation gives space to the voiceless others.

However, the first-the-past post system and proportional elections alone cannot address the grievances of marginalized and identity-based groups who are weak, poor and backward and voiceless, they need a separate forum.

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“The constitution has created the constitutions commission as a forum to address the issues of this group. Whether the issue of Dalit, Women, Marginalized or Indigenous group, Muslim, Tharu or Madheshi, they don’t need to go to elections. This constitutional commission has the right to address their concerns and problems. These commissions are created to address the problems and grievances. These commissions can issue recommendations to the state as per the constitutional provisions,” said Manandhar.

“Our study has made efforts to find out whether these commissions have been working closely with their constituencies and addressing the issue. Whether these commissions reached the province or local level. There are three tiers of governments and each government has been facing the issue of human rights and inclusion. To address the issue of representations horizontally, this commission can play a role. Although there are several policies, programs and laws, they have to face implementation barriers.

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“Implementation barriers are two: 1. Formal Institutions such as laws, acts, regulations, guidelines and mechanisms of delivery- hospitals, schools, agro office CDO for using resources such as budgets, people technology, etc. 2. Informal Institutions: Social norms, values and ideas that shape decision-makers behavior to use or not to fully use formal Institutions For example, even though untouchability is a crime by law, it is still practiced in society in villages, due to adherence to social norms and the idea of purity.”

“Our study also looks at the implementation parts. The study finds two sides to failing to implement policies. First is a formal institution that is related to the norms and values. All the mechanisms created to implement the policies are formal institutions,” said Manandhar.

Other commissions’ chairpersons also agreed on the current lapses in the execution and implementation of the agenda of Nepal’s constitution have constituted constitutional bodies. “The constitutional bodies can play an important role to implement constitutionalism and democratic values and belief to make state’s bodies accountable and inclusive,” said Dr. Vijaya Kumar Dutta, Chief Commissioner of the Madheshi Commission. “To make our function effective and show the visible presence, all commissions have been working now in close collaboration and coordination. We have been holding monthly meetings regularly and formed an informal mechanism among ourselves,” said Dr. Dutta.

At a time when there is confusion on the role of the commissioners at three tires of governments, it is expected that the study and research will help to understand the functions and actions of these constitutional bodies and how they support and play role in strengthening constitutionalism and democratization jointly.

“Constitutional bodies are not only strengthening constitution and democracy but also helping to increase access of the citizens. In total, this commission can give direction to the implementation of the constitution,” said Manandhar.

A number of measures have been written into the Constitution to ensure that these bodies are independent of the executive. For most important part is that their commissioners are appointed by the President on the recommendation of the Constitutional Council with a hearing from parliament.

Similarly, the commissioners are appointed for fixed terms and the eligibility criteria for their appointment are stipulated in the Constitution. The commissioners’ remuneration and conditions of services cannot be altered to their disadvantage, and the mandates of most of the constitutional bodies are constitutionally stipulated so that they cannot be circumscribed through the ordinary political and legislative process.

Out of 13, eight of these thirteen constitutional bodies were created for the first time in the 2015 Constitution while others had been carried over from Nepal’s previous constitutions.

“We are equal to all other commissions. There are no old or new commissions. Our appointment and removal process is the same. However, the right-based and inclusion base commissions have been receiving small budgets and get neglected by the federal government,” said Bishnu Prasad Chaudhari.” I have to accept the fact that this year we had got the opportunity to present before the federal parliamentary committee to discuss our agenda and suggestions presented in our report. “We have also started to visit the provinces and Tharu-dominated local government units to discuss our report.”

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The Commission for the Investigation of Abuse of Authority (CIAA), the Auditor General, the Public Service Commission (PSC) and the Election Commission of Nepal (ECN), were included in the Constitution of the Kingdom of Nepal 1990 and the National Human Rights Commission (NHRC) which received constitutional status in 2007 Interim Constitution, have functional institution. However, the National Natural Resource and Fiscal Commission (NNRFC), and the ‘Other’ commissions, located in Part 27, consist of the National Women Commission (NWC), the National Dalit Commission, Madheshi Commission, Muslim Commission, Tharu Commission and National Inclusion Commission are in the process of institution building.

Among them, NNRFC is more effective at its institutional level and functional levels. “The sources of all our authority and power derived from the constitution. Thus, all the commissions are equal. Of course, the pace is slow, but we are heading in the right direction to achieve the objective envisaged by the Constitution of Nepal,” said Balananda Paudel, chief commissioner of NNRFC. He said that there needs to have close collaboration among the commissions and a regular exchange of experiences.

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Sharing his own experience, Paudel said that the recent few studies conducted through Niti Foundation helped to narrow down the gap between the concerned federal parliamentary committee and the commission.

“Established to sort out the conflict of power and authority in each area, the functions and role of the commission need to be further extended,” said Paudel. Paudel regretted having a consensus among the political parties on the proposed draft act of the commission complaining to the government for not taking the commissions seriously.

Imminent constitutional lawyer and researcher Dr. Bipin Adhikari said that all the commissions have the same constitutional status irrespective of their functions. “Instead of blaming laws and constitution, the commissioners of the commission have to go and work defending their rights,” said Dr. Adhikari.

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He said that it is mandatory for the government to implement the recommendation given by the commissions. Dr. Adhikari cautioned political parties to appoint commissioners not affiliated with any political parties.

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“Whatever written in the constitution, there are discriminations among the constitutional bodies. The government discriminate against the commissions,” blamed Dr. Dutta.

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Former minister Ganesh Shah said that there is no other way than to strengthen and provide adequate resources to the commissions formed in the constitution of Nepal 2015. “The effective roles of other right and identity-based commissions are highly important to achieve the inclusive policies pursued by the constitution."

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Moderated by Purushottam Ghimire speakers taking part in an interaction program organized by the Niti Foundation on the Role of Constitutional Bodies in Constitutionalism and Democracy, speakers have expressed their views that constitutional bodies are not functioning effectively.

Wrapping up the program, National Assembly Member Kamala Panta said that constitutional bodies are created to strengthen inclusive democracy and safeguard the rights of minorities, and marginalized and identity-based groups. “ I am ready to play any role in National Assembly to make these constitutional bodies stronger,” said MP Panta.

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Professor Kapil Shrestha, a human right activist, suggested the need to implement effective policies and programs to make the constitutional commissions more functional and efficient. He praised the role of the Elections Commission to ensure free and fair elections during the last local elections.

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Participated by a wide range of stakeholders from various sectors, members of the National Assembly Kamala Panta urged the commissioners to work in collaboration with the province and local government so that they can implement their recommendations presented in the reports.

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Former members of the House of Representatives Chhkka Bahadur Lama and Sher Bahadur Tamang argued that the other eight commissions are important to implement the agenda of inclusion and equality.

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As chief election commissioner Thapaliya, who has been implementing effectively all elections power to ensure the elections are free and fair, highlighted the importance of studies, Niti Foundation will have to work for advanced and more intensive studies to bring all these commissions on the right track.

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