Good morning, good afternoon, and good evening from Kathmandu. This is Issue 194 of Kalam Weekly, the only newsletter you need to keep updated with everything happening in Nepal.
This week, we’d like to thank Mr Elliot Amkraut and two anonymous individuals for their support. Thank you also to two others who renewed their subscriptions. Your support keeps us going! Just a quick and important note: if you paid through the QR code or bank transfer, please reply to this email so I can provide you with your paid supporter benefits. Thank you so much!
In this newsletter:
Markedly improved SEE results lead to suspicion over testing
House passes Civil Service Bill only to find rogue clause
The deep dive: A former President reenters party politics
Markedly improved SEE results lead to suspicion over testing
On Friday, May 27, the National Examination Board announced the results of March’s Grade 10 Secondary Education Examination (SEE), shocking everyone. The pass rate for this year’s SEE — i.e., the percentage of students obtaining a Grade Point Average (GPA) of over 1.61 — was 61.81%, a significant increase from last year’s 47.87%. While government officials pointed to efforts made by local and provincial governments to increase pass rates, others suspect a fly in the ointment, or as we say in the subcontinent, दाल में कुछ काला है. It is nigh impossible for a nearly 15% increase without significant investments in education and teaching over a sustained period of time.
Pass rates don’t climb that high in just one year without someone either cooking the numbers (or juking the stats, as they say in a very apt scene in The Wire) or reducing the complexity of the testing. Professor Binay Kushiyait correctly told The Kathmandu Post: “I am happy to see improvement in the pass rate. But I am not convinced it is a natural growth. Has the learning environment improved? No. Did the budget for quality learning increase? No. Were there more teachers’ training? No. Then what magic formula has led to this big improvement?”
Kushiyait is right. The government has made no significant improvements in the past year that could explain the increase in pass rates. The federal budget for education has not increased significantly; thousands of teaching positions across the country are vacant; and there have been no institutional changes to teaching and learning. So what gives? Some believe that the tests were deliberately made markedly easier this year to meet Prime Minister KP Sharma Oli’s promise to increase pass rates to 70% during his tenure. Students who have passed the SEE have been saying as much on TikTok, too. We won’t know conclusively unless a thorough investigation is conducted, but the numbers are somewhat hard to believe.
House passes Civil Service Bill only to find rogue clause
On Sunday, June 29, the House of Representatives passed the Civil Service Bill, a much-needed amendment bill that will facilitate the deputization of civil servants under the federal system. The bill had been widely opposed by civil servants, who took particular issue with the inclusion of a “cooling off” period of two years between retirement and their next appointment. According to the cooling-off clause, bureaucrats can only be appointed to new governmental positions two years after retiring.
Currently, it is established practice that high-ranking civil servants, such as the Chief Secretary, Home Secretary, and Finance Secretary, receive appointments to foreign diplomatic missions as ambassadors and to constitutional bodies as commissioners immediately upon retirement. The cooling-off period was intended to prevent these powerful bureaucrats from colluding with ruling political interests in a quid pro quo, where they would do favors in return for future appointments upon retirement. Sitting bureaucrats, including Chief Secretary Ek Narayan Aryal, had lobbied against this cooling-off period, calling it demotivating. But politicians had insisted on its inclusion, rejecting the civil servant lobby.
The finalized text of the bill, as released by the Ministry of Federal Affairs and General Administration, can be found here. Clause 82 (4) of this bill states that bureaucrats of special or first grade cannot take up any constitutional, diplomatic, inter-governmental, development assistance, or any position related to their former sphere of work for two years without prior governmental permission. The State Affairs and Good Governance Committee, tasked with studying the bill, recommended removing the phrase “without prior governmental permission” and retaining the two-year cooling-off period.
However, once the bill was passed, some parliamentarians who had just voted on the bill noticed that an errant clause had been added to the bill. The new clause 82 (5) stated that the two-year cooling-off period only applied to “appointments to positions other than constitutional or diplomatic appointments and any other appointments made by the Government of Nepal.” This clause effectively nullifies the cooling-off provisions, rendering the entire thing meaningless. Parties immediately cried foul, accusing everyone from civil servants in the Ministry of Federal Affairs and the Parliament Secretariat to Ram Hari Khatiwada, chair of the State Affairs and Good Governance Committee of tampering with the bill. They’ve called on House Speaker Devraj Ghimire to constitute an investigation committee to look into who inserted the clause at the very last moment. Khatiwada himself has stated that he has no idea who altered the clause and that amendments will be made when the bill is presented before the National Assembly.
It is likely that civil servants, the community most affected by the bill, made the changes. After all, they’re the ones who have access to the bill and its text. They’re also the ones doing most of the hard work of preparing the bill, typing it out, making required changes, and facilitating ministers’ and committee members’ stamps and signatures. The Kathmandu Postreports that Suraj Dura, secretary of the State Affairs Committee, admitted to inserting the offending clauses in collusion with Mira Acharya, joint secretary at the Ministry of Federal Affairs and General Administration, and Subash Kumar Bhattarai, joint secretary at the Ministry of Law, Justice and Parliamentary Affairs. But this has not yet been corroborated by parliamentary officials.
Whoever did the deed, it is incredibly concerning that unelected bureaucrats can so easily hoodwink duly elected Members of Parliament. Who knows if such clauses have been inserted into laws in the past, too? It says a lot about the state of our legislature if anyone can just add clauses to bills that will go on to become national laws. I wish I could say I am shocked that the House of Representatives can pass a bill with a rogue clause attached to it, but nothing surprises me anymore.
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If you thought that last issue was complicated, here’s another doozy. Late Wednesday night, July 2, the Constitutional Bench of the Supreme Court finally decided on four-year-old petitions challenging the appointments of 52 officials to Nepal’s various constitutional bodies like the National Human Rights Commission, National Women Commission, Dalit Commission, Muslim Commission, and the Commission for the Investigation of the Abuse of Authority. The Bench upheld the appointments of all 52 individuals by a majority, with three justices — Sapana Pradhan Malla, Manoj Kumar Sharma, and Kumar Chudal — in favor, while the remaining two — Chief Justice Prakash Man Singh Raut and Nahakul Subedi — presented differing opinions.
In 2021, the then KP Sharma Oli administration sought to appoint ambassadors and officials to Nepal’s various constitutional bodies, but was hindered by the opposition parties’ refusal to attend meetings of the Constitutional Council. The Council is a body of six members — the Prime Minister, the House Speaker, the Deputy Speaker, the Chair of the National Assembly, the Chief Justice, and the Leader of the Opposition — that recommends individuals to the aforementioned embassies and commissions. The Constitutional Council Act requires five of the six members to be present to even hold a meeting, but with Sher Bahadur Deuba, then leader of the opposition, and House Speaker Agni Sapkota both boycotting the meetings, no recommendations could be made.
Oli circumvented this impasse by issuing an ordinance that amended the Constitutional Council Act, allowing meetings to be held if a simple majority was present. He resorted to an ordinance as the Parliament, which was already hostile to him, would never pass such an amendment. Then, President Bidya Devi Bhandari swiftly endorsed the ordinance, and Oli proceeded with his appointments. The first set of 32 recommendations was made in December. Oli then dissolved the House, meaning the recommended individuals could not undergo the required parliamentary hearing. President Bhandari again endorsed the appointments despite the lack of a public hearing. Twenty more appointments were made in May 2022.
These appointments were immediately challenged in court via a host of petitions. Some argued that the ordinance itself was illegal, while others pointed to the lack of a parliamentary hearing, among other legal issues. The petitions were transferred to the Constitutional Bench, which is mandated to examine complex constitutional issues. And there they sat for four years until Wednesday. The actual legal arguments are too complicated to get into here, but the reasons were largely procedural. The Bench upheld the executive’s right to issue ordinances, and that the House Speaker and the leader of the opposition had been informed about the meetings, but chose not to attend. According to lawyers, this ruling was intended to interpret the power to issue ordinances as per the constitution; but instead, the Bench treated the case as a purely legal and procedural issue. Such rulings will only embolden the executive to bypass constitutional checks and balances, they say.
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The deep dive: A former President reenters party politics
Former President Bidya Devi Bhandari (left) with Prime Minister and UML chairman KP Sharma Oli
On Saturday, June 28, former President Bidya Devi Bhandari announced her return to active politics, irking Prime Minister KP Sharma Oli and prompting much hand-wringing from commentators. Bhandari made the announcement at an event marking the 74th birth anniversary of her late husband, the firebrand UML ideologue Madan Bhandari. Prime Minister Oli, who was also present at the event, made a speech and left before Bhandari spoke, a clear sign of his discomfort at the latter’s reentry into the UML party. A few days later, on Wednesday, Bhandari’s secretariat informed the Home Ministry that the former president would be giving up all the perks — a monthly stipend, rent, fuel, telephone, utilities, and hospitality allowances — afforded to her as a former head of state.
Bhandari’s return to the UML and party politics had long been speculated. There were signs. She had been traveling across Nepal for over a year now, meeting party cadres and gauging the mood. In late May-early June, she spent 10 days in China, meeting with high-ranking members of the Chinese government and the Communist Party of China. According to The Kathmandu Post, Bhandari informed the Chinese of her intentions and assured them that “left unity” was still a possibility. The Chinese want to see Nepal’s communist parties, particularly the UML and the Maoists, merge to form a large communist bloc, like the erstwhile Nepal Communist Party. This latter party, although short-lived, was the largest communist force in South Asia and was largely engineered by Chinese prodding, particularly through then Chinese Ambassador to Nepal, Hou Yanqi.
Bhandari’s announcement has pleased many within the UML party who believe that she is the only senior politician capable of challenging the stranglehold that KP Sharma Oli has over the party. Oli has led the UML party as chairman since 2014 and has largely molded the party in his image. He has consolidated power and has emerged as something akin to an autocrat, sidelining other senior politicians who could challenge him for party leadership. In 2021, two former UML chairmen and prime ministers, Jhalanath Khanal and Madhav Kumar Nepal, split from the UML to form the Unified Socialists after being neglected and humiliated by Oli. The UML is now firmly in Oli’s grasp, which has not gone down well with many second-rung politicians within the party.
With no other senior politicians able to challenge Oli’s hold over the party, many looked towards Bhandari and actively called for her return. Bhandari, as a former vice-chair of the party and a two-time president, commands significant influence among UML party members. She is a popular figure among the party’s second and third rung leaders, even though she might not be as beloved by the public at large. Bhandari and Oli had a close working relationship even while the former was president, but lately, the two do not seem to be on the same page. At the same event where Bhandari announced her return, Oli made veiled comments warning against any attempts to split the UML party. Oli knows that Bhandari is coming for his chair, and he is not happy about it.
Discontent with Oli’s leadership has led to a few party members demanding the reinstatement of the two-term limit for the chairperson and an age bar of 70 years. In 2023, the UML removed the 70-year age bar for the senior leadership, largely to accommodate 73-year-old Oli, who plans to run for a third term as party chair. Politicians within the party say that age and term limits are necessary to revitalize the party and bring in new, younger leadership, but really, they are bristling under Oli’s thumb. This issue will be decided at the party’s statute convention, to be held in September. If the age and term limits are introduced, Oli will be ineligible to run for party chair, handing the position neatly to Bhandari, who is 64 years of age.
There is, however, concern in the public sphere that Bhandari is crossing a moral boundary, even if there is no legal restriction on her return. There was similar consternation a few months ago when Nanda Kishor Pun, who was vice-president during Bhandari’s two tenures as president, rejoined the Maoists. The institutions of the president and vice president are supposed to be non-partisan. Upon being elected to these positions, the individuals formally renounce their party membership and pledge to serve the country as a whole, acting as the “guardians of the constitution.” But this has rarely been the case, especially when it comes to Bhandari.
During her time as president, Bhandari often acted more as a UML party member than an apolitical president. In 2021, Oli, who was also the prime minister then, attempted to dissolve the House of Representatives twice. Each time, he was aided and abetted in his illegal actions by President Bidya Bhandari, only to be thwarted by the Supreme Court. Bhandari was much more lenient towards Oli and his interpretation of certain articles of the constitution, despite contradicting legal advice. In these instances, she showed that she had not risen above party politics to act as a neutral mediator.
Then, in 2022, Bhandari blatantly defied the constitution by refusing to pass the Citizenship Act Amendment Bill. Article 66 of the constitution lays out the rights and responsibilities of the President, allowing them one attempt to amend any laws with which they are not satisfied. For a bill to become law, it must pass through both Houses of Parliament and then be signed into law by the President. The constitution does provide the President the right to send any such bill back to the Parliament for review and suggest amendments. However, the Parliament is also within its rights to either accept or reject the President’s recommendations and then send the bill back to the President for authentication. When it comes back a second time, the President must authenticate the bill, as per the constitution. In this particular instance, both Houses of Parliament rejected the President’s recommendations concerning the Citizenship Act Amendment Bill. Yet, Bhandari refused to provide her assent, violating the constitution. Then, too, the UML party was the only one that stood against the bill; almost every other party had voted for the bill.
For more on the many occasions that Bhandari acted more as a UML party member than a national President, read this old newsletter from 2021:
Bidya Bhandari was the first woman President of Nepal, and that alone has ensured her a place in the history books. She could have retired and led a life of ease and comfort, indulging in charitable works and perhaps even writing a book or two. The country’s first President, Ram Baran Yadav, was once a Nepali Congress politician, but since his tenure ended, he has shown no desire to reenter party politics, choosing instead of engage in various charitable and social causes that he is passionate about, like conservation of the Chure forests. Bhandari’s re-entry into party politics deals a significant blow to the federal republic that is already under attack from pro-monarchy forces. A major argument from this latter group is that the king will act as a neutral unifying force for the country since he does not belong to any particular party. If former presidents and vice presidents act as party members while in office and then rejoin their parties after leaving office, any semblance of neutrality is lost. This is just one more instance that monarchists can point to to show how corrupt and partisan this new federal republican system is.
The UML is the second-largest party in the federal Parliament and the largest party in Nepal in terms of membership. Who leads the UML thus becomes a national concern, not just a partisan one. A former President leading the UML might bolster the party’s morale, but it does not bode well for checks and balances and the institution of the President in our nascent republic. If the President, envisioned as the highest position in the land, a unifying figure to replace the figure of the king, acts as a party member, what hope can that inspire in the republic?
That’s all for this week. I will be back next Friday, in your inbox, for the next edition of Kalam Weekly.
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Good explainer on Bhandari.