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The nature of Presidency

Bipin Adhikari
The Kathmandu Post, 31 July, 2008
Source: The Kathmandu Post

What once a courtier of King Charles II (1630 – 1685) of England wrote on the door of the Royal Bed Chamber remains more or less a fair description of the British constitutional monarchy even after centuries:

"Here lies a great and mighty King;
whose promise none relies on,
Who never said a foolish thing;
Nor ever did a wise one."

Although it might look a little exaggerated, it is historically true that a constitutional monarch or an elected president who practices the British (Palace of Westminster) style of parliamentary democracy evolved over the last four centuries cannot do any wrong because they are supposed to act only on the advise of their government—particularly the prime minister. As such, he or she can have no conscience, as everything is in control of the prime minister elected by the House of Representatives.

If the constitutional doctrine of ministerial responsibility, which is a major characteristic of the British parliamentary system means anything at all, these constitutional heads would be bound even to sign their own death warrants, if they were presented to them for signature by their own elected Prime Minister (enjoying the confidence of the House). This is the spirit on which the erstwhile Constitution of the Kingdom of Nepal 1990 was erected. This is the spirit on which a presidential form in the parliamentary system is usually created.

Nepal too has a president now. Almost two months after the monarchy was abolished and Nepal was declared a republic, the members at the Constituent Assembly voted Ram Baran Yadav, a non-practising physician and Nepali Congress leader, as Nepal's first ever President. He is expected to be in the shoes of a constitutional monarch. Similarly, the Assembly also elected Parmananda Jha, a former judge and a later associate of the Madhesi Janadhikar Forum, as the Vice-President of the country. When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President represents him as per the Constitution.

According to the Constitution, both the President and Vice-President are supposed to exercise authority and dignity without exercising real powers. At the face of the Maoists, who have emerged as the largest party in the Constituent Assembly, and are supposed to lead the new coalition government with the help of the fringe groups, the ad hoc coalition of the three other parties in the Assembly was determined to elect these non-Maoist office bearers as uneasy bed partner for the post of Prime Minister.

The political intrigues that were observed in this exercise were enough to give the impression that the (constitutional) President was being perceived as the countervailing power against the Maoist Prime Minister. These perceptions were not only demeaning to the authority and dignity of the new President and Vice-President, but also less than straightforward. In the maneuverings that were followed, there was a clear indication that the power of the (constitutional) President might be manipulated against the decisions of the (Maoist-led) government—if the government decides what the President thinks is not acceptable to him. This perception necessarily pits the President against the Prime Minister (and his cabinet).

Unfortunately, some provisions in the Fourth and Fifth Amendments to the Constitution, which provide for the role of the President, lead the nation towards the same direction. These Amendments were drafted, tabled in the House and passed quickly, without even stating in all-encompassing terms that the President is bound to act in accordance with the advice of the Prime Minister in all cases. There is definitely scope for conflicting positions.

Furthermore, the Interim Constitution has no clarity as to whether the system being applied is a prime ministerial one that was in vogue in Nepal under the 1990 Constitution. This allowed the Prime Minister the status of primus inter pares, although the cabinet government assumed a collective leadership of ministers. Many provisions of the Interim Constitution, laying down clear emphasis on consensus as the basis of decision making, give the impression that the Prime Minister is all but subservient to the (coalition) cabinet.
The argument here is not that the function to be exercised by the President on the advice of the Prime Minister is just formal or mechanical. The President must be persuaded to get something done and on occasions he may do the persuading at his own initiation. This definitely falls within his legitimate powers. It has indeed been the tradition in this country that the Prime Minister consults the head of the state informally so that he may make his views known to the government without rejecting or suspending action on the formal advice given to him. The head of the state can provide all his comments on any proposed course of action and ask the Prime Minister, if necessary, to reconcile the matter.

It is only in the last resort that the President should accept the final advice of the Prime Minister. In the ultimate sense, the Prime Minister has the right to have his way no matter what the President thinks about it. As such, for every mistake that the President commits the Prime Minister or his government is responsible, not the President who did it at their behest.

Building presidency at the face of such constitutional inconsistencies is going to be difficult for sure. In a parliamentary democracy, where the head of the state is to be elected as the symbol of national unity, it is not usually the trend to provide for either the institution of popular election, or their elections from the same house and through the same procedures that are normally applied to elect the executive prime minister.

For example, in India, the President is elected by the members of the electoral college consisting of the elected members of both the house of parliament at the national level and the elected members of the legislative assemblies of the states. As far as possible, there is to be uniformity among the states inter se as well as parity between the states as a whole and the union. Such a system in particular makes sure that the president is not a creature of the majority party, and enjoys independence and dignity that his office deserves.

The interim Constitution, a product of many unethical considerations, embodies several constitutional machinations. While the Prime Minister (or his cabinet) has every right to exercise the executive power of the nation and maintain that their point of view must be accepted because they represent the majority in the House, the president, who has come to exist through the same procedures, can also claim on the same footing that he too is the executive of the nation for matters assigned to him by the Constitution.

Given these constitutional anomalies, the President can always argue that if he was to be merely a 'constitutional head' in a parliamentary set up, why did the Constitution apply the same procedures to appoint the Prime Minister and President? This argument surely holds water. This is not a comment on the wisdom of the person who has been elected to serve as the president, but on the intentions of the unscrupulous people who are set to distort the democratic process in this country for short-term gains—by creating identical power centres.

Unfortunately, the judiciary of the country has been weakened enough not to accept jurisdiction on crucial constitutional issues, and so it would not be able to help settle such issues judicially.

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