KATHMANDU, Nov 10: The Supreme Court (SC) has checked the government’s decision to recall ambassadors to 11 countries, ruling that ambassadorial appointments cannot be made when parliamentary hearings cannot be conducted. This interim order has set a precedent, indicating that the government cannot proceed with appointments to positions that require parliamentary scrutiny.
Elections for the House of Representatives (HoR) are scheduled for March 5. To hold these elections, the Election Commission (EC) must be complete. Completing the EC requires recommendations from the Constitutional Council (CC), approval by the Parliamentary Hearing Committee (PHC), and appointment by the President. However, the SC order clarified that, in the absence of a HoR, parliamentary hearings cannot take place, and recommendations cannot be made. Although the PHC is a joint committee of the National Assembly and the HoR, its Chair and majority of members come from the HoR, leaving the remaining members in the minority.
Under Article 292 of the Constitution of Nepal, appointments of the Chief Justice, SC justices, members of the Judicial Council, heads or officials of constitutional bodies and ambassadors require parliamentary hearings in accordance with federal law, based on the recommendation of the CC. Since parliamentary hearings for ambassadors cannot currently be conducted, the SC issued an interim order last Sunday directing the government not to implement the recall of ambassadors. The order stated: “Considering Article 292 of Nepal’s Constitution, it is currently not possible to fill the ambassadorial positions, and they are likely to remain vacant.”
Parliamentary Hearing Committee to finalize ambassadorial appoi...
“A distinction must be made between positions that are voluntarily left vacant and those that become vacant automatically. If this is not done, any recommendation for a position requiring a parliamentary hearing could be invalidated. From the current order, it appears that even for already vacant positions, parliamentary hearings are required,” said a legal expert.
Questions have arisen over whether appointments to positions requiring parliamentary hearings can be made at this stage, and if so, whether the court would later invalidate them. Additionally, the opposition party leader is absent from the CC. Without an opposition leader, it is unclear whether the council can make recommendations, and even if it does, parliamentary hearings cannot be conducted due to the dissolution of the HoR. In this context, the government’s decisions and the conduct of upcoming elections have become serious issues.
The Constitution stipulates that the EC shall have a Chief Commissioner and four other commissioners. The Chief Election Commissioner serves as the head of the commission. However, following the end of Chief Election Commissioner Dinesh Thapaliya’s term, the EC is currently without a permanent head. Acting Chief EC Ram Prasad Bhandari, along with commissioners Dr Janakikumari Tuladhar and Sagun Shamsher Jabara, are the only active members. One commissioner’s position, as well as that of the Chief Commissioner, remains vacant. Although the EC Act 2073 BS states that a vacancy in a commissioner position alone should not hinder the commission’s operations, in practice, conducting elections under these circumstances is challenging.
Sources claim that Chief Secretary Eaknarayan Aryal has been lobbying to secure the position of Chief Election Commissioner after resigning from his post shortly before retirement. Since the tenure of the previous KP Oli government, he has sought this post, aiming to increase the retirement age under the Federal Civil Service Act from 59 to 60 years, thereby making him eligible for the Chief Election Commissioner role. His plans were affected by changes following the Gen Z movement on 8–9 September, but sources say that the interim government’s Prime Minister, Sushila Karki, allowed him to advance as a loyal bureaucrat towards the post.
With the positions of Chief Election Commissioner and one commissioner vacant, uncertainty remains over whether the CC will meet and whether the incomplete EC can be made full without parliamentary hearings. Under the prevailing Civil Service Act 2049 BS, Chief Secretary Aryal will reach mandatory retirement on 25 November due to the 58-year age limit. He was appointed Chief Secretary on August 29.
