By Pratibedan Baidya

As the country is moving towards forming an interim constitution, experts have suggested that provisions should be made of at least three new constitutional bodies in the interim constitution.

Constitutional lawyer Bhimarjun Acharya. nepalnews.com/rh
Talking to Nepalnews, constitutional lawyer Bhimarjun Acharya suggested that three more constitutional bodies including National Human Rights Commission (NHRC), Media Commission and Constitutional Court be included and recognized as constitutional bodies in the new constitution of Nepal.

The constitution of Nepal 1990, formed after the success of the popular movement of the country has a provision of five constitutional bodies namely the Election Commission, Public Service Commission, Commission for the Investigation of Abuse of Authority (CIAA), Auditor General, and Attorney General. Part 12 to part 16 of the constitution deal with these bodies.

The constitution has formulated these bodies in such a way that they remain (in principle) free of interference from the executive. They need to present their annual report to parliament.

According to the constitution, chief of the constitutional bodies are appointed by the King upon the recommendation of the Constitutional Council. The proclamation of the reinstated House of Representatives in May this year deprived the King even from this customary right.

Advocate Acharya argued that there was the need to add three more constitutional bodies in the new constitution keeping in view of the international practice and realizing the gravity of these sectors.

“NHRC as a constitutional body should be made organ of the state, not the government, so that it would be able to investigate into cases of rights violations committed even by the state in a free and fair manner,” he said, adding, “The NHRC formed under general law could not work effectively, so it should be included as a constitutional body.”

The NHRC should be empowered to investigate the incidences of rights violation by the state parties and make the culprit accountable, he added.

Sushil Pyakurel, former member of the National Human Rights Commission, agreed and said the NHRC has been constituted as a statutory body but in some new democratic countries, such national institutions could be incorporated as constitutional bodies.

“As we are moving towards new constitutional process, it is appropriate to include NHRC as separate constitutional body to make the national rights watchdog more accountable and effective,” said Pyakurel. “The status of constitutional body should be given to the NHRC to ensure impartiality, power and professionalism of the national rights watchdog,” he added.

Pyakurel further said that the appointment of the NHRC should be made directly by the parliament or any other people’s representative body in the changed political scenario.

“Unless and until the tendency of appointment process of the office bearers of the NHRC is corrected and they are made directly accountable towards people’s representative body, the rights watchdog can’t be expected to function independently,” he added.

According to NHRC Act, the King on the recommendation of the Recommendation Committee appoints the Chairperson and Members of the Commission. The Act says, the commission shall have the following office holders:

(a) The Prime Minister Chairperson
(b) The Chief Justice Member
(c) The Leader of the Opposition in the House of Representative Member

Advocate Acharya further argued that there was a need to include Media commission as an independent constitutional body in order to recognize media as the fourth organ of the state.

“Though media is regarded as the fourth organ of the state, it is limited in mere political speeches, there are no laws to guarantee press freedom, so if the media commission is included as a constitutional body, it can investigate into incidences of violation of press freedom and uphold people’s right to information,” he added.

According to Acharya, while the Press Council should have the responsibility of issuing press passes to working journalists, monitoring of code of conduct and other functions, the media commission would look after press freedom related issues and lobby for protecting the rights of the media.

President of FNJ Bishnu Nisthuri (Photo source : fnjnepal.org)

When contacted, Bishnu Nisthuri, president of Federation of Nepalese Journalists, an umbrella organization of working Journalists, said that they are yet to discuss and reach to any conclusion in this regard.

Nisthuri, who is also a member of the High Level Media Commission said that they are holding discussions and soliciting suggestions in this regard. When we complete this job, we will make public our position in the new constitution, he said.

Chairman of NPI Dhruba Hari Adhikary
(File photo)

Similarly, senior journalist and chairman of Nepal Press Institute (NPI) Dhruba Hari Adhikary, said that incorporating media commission would facilitate the freedom of expression and access to information in the country.

“As right to information is a fundamental right of the people, incorporating media commission as a constitutional body will ensure people’s right to information as well,” Adhikari added.

He also said the high level media commission has started functioning recently and discussions are ongoing in the issue of incorporating it as a constitutional body. If incorporated, it will be good for media sector of the country and help ensure people’s access to information, he added.

Advocate Bhimarjun Acharya further said that the logic behind including Constitutional Court was to look at the cases in which the state is involved.

“As we have three-tier court system and the courts are cadre judge based, the constitutional court will look into the cases involving state parties and the citizens and cases in which the state is involved,” When asked about the mandate of these constitutional bodies, he said necessary laws should be formulated in this regard but the constitution should decide about the manpower and structure of these constitutional bodies.

An interim constitution drafting committee led by former Justice Laxman Prasad Aryal is currently working to draft a new interim constitution for Nepal that will pave way for constituting a new interim government and holding elections to the Constituent Assembly.