Functions and Jurisdiction of Constitutional and Statutory Bodies
Constitutional Bodies
Constitutional bodies are other organs provided by the constitution except for the separation of powers among the three branches. The constitution regulates their formation, appointment of members, work, duties, and powers. Their operation is independent in nature. However, among the three branches, they are closer to the executive branch and seek accountability from it.
Their main objective is to develop as independent bodies, but they largely watch over the executive’s work. Since the executive uses more resources and power, the possibility of misuse is equally high. Constitutional bodies are arranged to prevent this misuse.
These bodies developed from the USA system and are more active in presidential forms of government. They are arranged to end autocracy, ensure stability in work, control misuse of resources, uphold constitutionalism, and limited government. However, they also exist in parliamentary systems to assist democratic governance.
According to Article 302(1)(k) of the Constitution, the term “constitutional bodies” includes the Commission for Investigation of Abuse of Authority (CIAA), Auditor General, Public Service Commission, Election Commission, National Human Rights Commission, National Natural Resources and Fiscal Commission, National Women’s Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission, Tharu Commission, and Muslim Commission — altogether 13 constitutional bodies.
Need and Importance of Constitutional Bodies
- Rule of Law
- Limited Government
- Stopping autocracy of the executive
- Stopping undue interference of political parties
- Bringing professionalism to work
- Maintaining fairness
- Ensuring stability
- Adopting constitutionalism
- Giving advice and suggestions to the executive
- Fulfilling the purpose of the constitution
- Making state mechanisms accountable
- Maintaining transparency
- Promoting good governance
Development of Constitutional Bodies in Nepal
Problems related to Constitutional Bodies in Nepal
- Delay in filling positions on time
- Appointment based on political shareouts
- Instability
- Lack of resources
- Unscientific division of work
- Annual reports only discussed superficially
- Some unclear issues
- Disputes between constitutional bodies (e.g., reservation issues between Inclusion Commission and Indigenous Nationalities Commission)
- Increasing administrative expenses
- Government ignoring advice and recommendations (e.g., Human Rights Commission)
- Centralized structures
- Imbalance between qualifications and reservation
Statutory (Legal) Bodies
Statutory bodies are formed according to laws, ordinances, rules, formation orders, treaties, or special decisions by the Council of Ministers. Their characteristics are:
- Closely related to the executive
- Support daily work of the executive
- Such bodies are common worldwide for governance
- Main function is development
- Can change with government changes
- Usually not accountable to the legislature
- Can be formed or dissolved quickly
- Formation under sectoral laws
Need and Importance
Development and good governance are primarily provided by the executive. According to the concept of multi-layer governance, civil society, private sector, and international community also participate, but the main responsibility lies with the government. To fulfill this responsibility, various statutory bodies are formed.
- Policy formulation
- Adoption of dynamism
- Acceptance of decentralization
- Establishing government legitimacy
- Performing regular tasks (peace, security, revenue collection, defense), emergency management (disaster and crisis management), and development (economic, social, educational, physical)
- Law-making necessity
- Enforcing change
- Specifying clear functions
- Ensuring social justice
- Preventing budget misuse
Problems in Statutory Bodies in Nepal
- Formation without proper study or justification
- Expanding organizations unnecessarily instead of assigning tasks to existing ones
- Establishing organizations without clear functions
- Lacking laws and work descriptions
- Duplicate organizations
- Formation without surveys
- Changes due to political instability and government change
- Formation or dissolution under donor pressure
- Centralized formation only
- Formation under ordinances
Interrelation between Constitutional and Statutory Bodies
- Both are established under law and follow the country’s laws
- Both are under state control
- Both work for public interest
- Both have clear jurisdictions
- Both are equally subject to law violations
- Principle of natural justice applies to both
Differences Between Constitutional and Statutory Bodies
Constitutional Bodies:
Examples include:
- Commission for Investigation of Abuse of Authority (Articles 238, 239)
- Auditor General (Articles 240, 241)
- Public Service Commission (Articles 242, 243, 244)
- Election Commission (Articles 245, 246, 247)
- National Human Rights Commission (Articles 248, 249)
- National Natural Resources and Fiscal Commission (Articles 250, 251)
- Other commissions under Article 27 like Women, Dalit, Inclusion, Indigenous, Madhesi, Tharu, and Muslim Commissions (Articles 252-264)
Appointment
Members and Chairpersons are appointed by the President on the recommendation of the Constitutional Council.
Term
Six years
Age Limit
Minimum 45 years and maximum 65 years (No upper age limit for Human Rights Commission)
Impeachment
Members can be removed if impeachment passed under Article 101.
Reappointment
Chairpersons or members cannot be reappointed, but a member can become a chairperson after the completion of the term as member.
Educational Qualification
- Generally bachelor's degree required; for Public Service Commission, master's is required.
- For National Natural Resources and Fiscal Commission, degree in commerce, management, or accounting.
- No specified qualification for Women, Madhesi, Tharu, and Muslim Commissions.
Commission for Investigation of Abuse of Authority (CIAA)
- Investigates corruption and abuse of power by public officials
- Can file or cause to file cases in competent courts
Auditor General
- Audits regularity, economy, efficiency, effectiveness, and propriety
- Consulted for appointment of auditors of government-owned institutions
Public Service Commission
- Conducts exams for civil service posts
- Consulted on recruitment, promotion, and disciplinary actions in civil service
- Permanent appointments require PSC’s advice
Election Commission
- Conducts, supervises, directs, and controls elections
- Prepares voter lists
- Conducts referendums on national importance
- Decides on candidate eligibility questions
National Human Rights Commission
- Ensures respect, protection, and promotion of human rights
- Investigates human rights violations and recommends action
- Recommends disciplinary action against officials who neglect their duties
- Coordinates with civil society to raise awareness
- Reviews and suggests amendments to human rights-related laws
- Monitors implementation of international human rights treaties
- Publishes names of those who fail to implement its recommendations as human rights violators
National Natural Resources and Fiscal Commission
- Determines criteria and framework for revenue sharing among federal, provincial, and local governments
- Recommends equalization grants to provinces and local governments
- Studies and suggests conditional grants based on national policies, standards, and infrastructure
- Analyzes economic indicators and recommends internal debt limits
- Suggests solutions to disputes over natural resource allocation among governments
Statutory (Legal) Bodies
Statutory bodies are formed according to laws, ordinances, rules, formation orders, treaties, or special decisions by the Council of Ministers. Their characteristics are:
- Closely related to the executive branch.
- Assist in the daily functioning of the executive.
- Commonly practiced worldwide as necessary governance institutions.
- Their primary role is development and implementation.
- They may change with government changes.
- Generally, they are not accountable to the legislature.
- Can be formed or dissolved quickly.
- Established under sector-specific laws.
Need and Importance
While development and good governance are primarily the responsibilities of the executive, the multi-layer governance concept involves civil society, private sector, and international community as well. The government forms various statutory bodies to fulfill its duties effectively. Their needs include:
- Policy formulation
- Adapting to dynamism
- Accepting decentralization
- Establishing government legitimacy
- Carrying out regular functions such as peace, security, revenue collection, defense, emergency and crisis management, and developmental activities
- Law-making necessities
- Implementing changes
- Specializing functions
- Ensuring social justice
- Preventing misuse of budgets
Problems in Statutory Bodies in Nepal
- Formation without proper study or justification
- Creating new organizations unnecessarily instead of assigning tasks to existing ones
- Establishing organizations without clear functions
- Lack of clear laws and job descriptions
- Duplicate organizations
- Formation without surveys or research
- Frequent changes due to political instability and government changes
- Formation or dissolution under donor pressure
- Mostly centralized formation without regional representation
- Formation under ordinances rather than comprehensive laws