Politics is centered on the election of the fourth president and all political parties are flexing their muscles to elect their preferred candidates for the post of head of state. Politics is being polarized, collusions and strategies are being made all with the intention and hope of using the occupant of Office of the President to get their decisions–often laden with petty political interests–endorsed. But how does our constitution envisage the role and status of the president? What are their theoretical and pragmatic aspects? Why has the president often been dragged into controversies in Nepal? What can be done to ensure that such incidents do not recur? What are we to make of the race among the political parties and the increasing interests of the foreign power centers in the presidential election? Kishor Dahal of Nepal Live Today spoke to constitutional expert Dr Bipin Adhikari to take his insights. Excerpts:
People define Nepali presidency the way it suits them. While some call it a ceremonial position, others call it a purely constitutional role. Yet others claim that the president also has executive powers. What does our constitution actually say about the president?
Our President is a constitutional position. The Constitution grants the President the power to work on a dozen different subjects on the advice of the Prime Minister or constitutional body. Unless the President signs the bill passed by the parliament, it does not become a law. The President issues ordinances. It is the President who should present the policies and programs of the government. The President is also the Supreme Commander of the Nepali Army. These are a dozen different subjects that can help one understand the President’s powers. It is not just a ‘ceremonial position’ as some people say. Our President has to use intelligence and discretion. That’s why we say that the President’s position is constitutional. But like I said, the president has to act on the advice of the Prime Minister while exercising powers. Also, the President must work as per the constitution of Nepal. That is why it is wrong to term the presidential position a ‘ceremonial position’.
The President is supposed to function on the recommendations of the Prime Minister, parliament and constitutional bodies. Is there a space for the president to use his/her conscience while making decisions?
The President holds discretionary power, particularly in the appointment of the Prime Minister. If a single party holds the majority in the House of Representatives, the President appoints the leader of that party’s parliamentary party as the Prime Minister. However, when it comes to forming a coalition government, Article 76(5) of the Constitution allows any member of parliament to form a government by securing a majority in the House of Representatives, thus requiring the President to exercise discretion. In such cases, different individuals may make claims, and the President has the right to exercise discretion to determine the correct claim. It is necessary for the President to be satisfied before making any decision.
‘If hundreds of lawmakers collude and endorse bills that harm Nepal, the President has the right to reject it.’
Furthermore, the Constitution requires the President to be satisfied with ordinances forwarded by the government. However, the Prime Minister’s perspective should not be ignored, and the President can choose to stop the process. The Prime Minister cannot make negative comments to claim superiority even when the ordinance is rejected by the President. Additionally, the President has the right to reject bills and can return the bill with a message. Prime Minister cannot use their power against the President, and it is not necessary for the Prime Minister to provide advice in such situations.
Then can we say that there are misperceptions about the role and status of the president in our society?
In politics, people feel like all the power should belong to them. On the other hand, some say that once they get a chance to be in power, they should make every possible effort to remain in power.
Also there are people who have not gone through the Constitution of Nepal thoroughly and have their ready-made opinions. They do not take responsibility for the statements they make or remarks they give. And even the media houses create constitutional experts out of anyone.
Those who are in politics always defend their points. Even the lawyers do that. This happens because winning the case requires the use of law as a weapon. This is what is happening now.
The parliamentary system is not manufactured in factories. The system was created by the experiences of 100 years of different countries. There, the constitution does not exist, but runs on tradition. If you search for every detail in the constitution and abandon tradition, the parliamentary system will never be understood. That is the problem.
You said the President has the right to make decisions on moral grounds. But both President Ram Baran Yadav and President Bidya Devi Bhandari courted controversies in Rukmangad Katwal and Citizenship Bill cases respectively. Why so?
Then president Ram Baran Yadav reinstated the Chief of Army Staff who was sacked by the prime minister. The president did not have the right to reinstate the Army Chief or to appoint one. The president should have worked as per the recommendation of the cabinet. However, the president exercised power against the constitution.
President Bidya Devi Bhandari rejected the Citizenship Bill as per the constitution. The constitution allows the president to reject a bill for only one time. When the government forwarded the bill for the second time, President Bhandari ignored it. It was unconstitutional. President Bhandari also exercised power against the constitution.
Having said this, there were reasons behind taking those two decisions by two presidents. When president Yadav reinstated then Army Chief, people had no belief that the peace process would be completed if Katwal was sacked. So president Yadav’s intention was good. But it was against the constitution.
Regarding the Citizenship Bill, President Bhandari also did not have wrong intentions. If hundreds of lawmakers collude and endorse bills that harm Nepal, the President has the right to reject it. It was against the constitution, but it was rejected on moral grounds.
In your view, what kind of relations should the president and the prime minister have?
The head of state and the prime minister should have a close relationship. The Prime Minister holds executive power, and the President is also a member of the Prime Minister’s team. The President should never exercise power against the Prime Minister. The parliament can hold the Prime Minister accountable. The President cannot be held accountable by parliament. Therefore, the head of state must always be aligned with the Prime Minister’s perspective. That is also the constitutional provision. This does not mean that the President’s role is to be a silent observer, advisor, or watchdog. Everything can be discussed. But it should be done in the presence of the Prime Minister, not in public. In public, the President must be seen as the Prime Minister’s ally.
Political parties have made the presidency a big prestige issue. What does this bode for our politics?
The election of president should not have been such a debated issue. Perhaps such debate would be justified if this happened after the political parties filed candidacies for the presidency. They could discuss the merits of the candidate, including his/her quality and qualification. We have not been debating these key issues. Rather, there is polarization and division and confusions are being created. This has been made a subject of trade-off.
How do you see the interests of the foreign power centers in the election for the president?
This is an unfortunate situation. We all live by some moral principles. If someone says ‘I am an agent of someone’ it’s no use debating the issue. Otherwise, it is not necessary that Nepal should consider the interests of the foreigners in every single decision it takes. Election of the president is purely an internal and independent process of Nepal. If someone interferes in that process,we need to be able to cut that interfering hand. We should not tolerate such interference if there is any. We need to resist. Those who think they have suffered such interference in the past too and therefore it is okay should not be in politics any more. This issue is directly related to the dignity of the nation. Big powers tend to exert their influence but we should not fall for it. Nor should we negotiate with them secretly. If there are any such interests and pressures they should be made public. If the politicians compromise for political gains the country becomes the victim. Sadly, this is what has happened in our country.
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