(Excerpts of a paper presented at a forum jointly organized by the Consortium of Constitutional Experts (CONCOE) and Tribhuvan University Faculty of Law, Kathmandu, August 25, 2008)
The President of Nepal is the head of the newly established republic. In this capacity, he replaces the King who has been dethroned by the Constituent Assembly elected to draft a new constitution for Nepal. Like the King, he has been given enormous powers by the Interim Constitution. For example, he has powers in the judicial (Articles 103 and 117), legislative (Articles 87-88), and executive (Articles 36A and 51-52) fields. He has also military powers (Article 144), diplomatic powers (Article 150) and powers of emergency (Art 143). However, his capacity as the head of the executive branch of government is largely a legal fiction. The reason is – the President exercises most of his powers upon the recommendation and advice of the Council of Ministers accountable to the parliament, or other constitutional entities like the Constitutional Council, which has the responsibility for major political appointments for the constitutional functionaries created under the Constitution.
The Nature of Presidency
In typical Westminster tradition, the powers of the head of the state under the Interim Constitution imply that he can do no wrong.
The President, like the former constitutional monarch of Nepal, is incapable of authorizing wrong to be done, because when he acts with the cooperation of others, those who cooperate with him are responsible for his acts. Clearly, the position of the head of the state is not intended to be a controversial position. This does not mean that the function to be exercised by the President on the advice of the Prime Minister or any other constitutional entity is just formal or mechanical. The Constitution does not reject the power of the President to provide creative assistance to the government in his bid to safeguard the Constitution and help its enforcement. He can always advise the Prime Minister on any issue of governmental importance, share his point of view with him on a particular issue, and let the Prime Minister know what he thinks is in the best interest of the country. 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 in a particular way.
Only as a last resort should the President 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. This is the nature of the presidency that the Interim Constitution has embarked on.
Some contradictions
While making it obvious, that this is a system based in the doctrine of ministerial responsibility, the Interim Constitution does not state that “the executive power of the state, pursuant to this Constitution and other laws, be vested in the President and the Council of Ministers.”
After sharing most of these executive powers with the President, including the power of declaring emergency, the Interim Constitution states that “the executive power of Nepal shall, pursuant to this Constitution and other laws, be vested in the Council of Ministers” [Article 37(1)]. In this formulation, the Interim Constitution ignores altogether the role of the President in the exercise of key constitutional powers that it has elaborated under different Articles. It also does not give him the power to warn or alert the government in express words. Similarly, the Interim Constitution does not acknowledge that just as the activities of the head of the state and internal business of parliament are to be immune from challenge in the court, so the business of government, as it takes place between the Council of Ministers and the President must not be the subject of scrutiny.
Additionally, the present Constitution has also dropped the earlier parliamentary rule that the head of the state can send back a bill to the parliament asking it to reconsider the instrument on certain grounds. The new arrangement now is that the President only has to certify the bill as passed by the legislature; he cannot have any opinion on it.
These constitutional loopholes cannot belittle the fact that the President heads the state in a parliamentary form of government; and is expected to facilitate the business of the executive as a ‘constitutional’ as opposed to ‘ceremonial’ president. Apparently, his role in the constitutional system is more than receiving and sending envoys to foreign countries and hosting state visits. Therefore, the argument that Nepal has moved from ‘constitutional monarchy’ to ‘ceremonial presidency’ is factually wrong.
Constitutional Role on the appointment of the Prime Minister: In this background, the status of the presidency in the future depends on how President Dr Ram Baran Yadav, who is the first elected head of the state, and bears principal responsibility to uphold the Constitution under Article 36A(3) implements the parliamentary spirit in it.
The recent move of the President asking the Constituent Assembly (acting as the legislature) to elect a new prime minister for the country according to the electoral process specified in Article 38 (2) of the Interim Constitution is an important issue in this context. Following the failure of the political parties to forge a consensus government, which Article 38(1) of the Interim Constitution required as the first intended move, President Yadav had advised the assembly to go for this second option.
The move of the president certainly surprised many critics, who have different understanding of how a parliamentary system of government works, or should work in an ideal case. In fact, the Interim Constitution spared no clear guidelines on the role of the President about the formation of the government. Even the five piecemeal amendments on this document — just over a period of seventeen months — left no clue to the President how he should exercise his discretion on the electoral positions of different parties in the newly elected Constituent Assembly, and find a prime minister for the country from within the House.
As a matter of parliamentary tradition that Nepal has practiced over more than a decade, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. Such a prime minister could be a consensus Prime Minister, or a prime minister with simple majority support, but in any case, he/she must be appointed first by the President to go through Clause (1) or (2) of Article 38. The President cannot delegate this responsibility to any A, B or C cutting unnecessary procedural corners. In a parliamentary system, this is probably the only executive act, which the President is supposed to do himself, on his own discretion and best judgment, and without any persuasion from the existing government. The Interim Constitution does not deny this power of the President (or the earlier traditions in this regard) either by express words, or by necessary implications. For the great faith reposed on him, it is the newly appointed prime minister who in turn is expected to prove his new credential before the House by securing a vote of confidence within a specified time. Apparently, by not doing so, the President not only ignored the applicable constitutional conventions, but also abdicated his constitutional powers to those people who were not entitled to this.
In other words, if the President authentically believed that the Communist party of Nepal (Maoist) had the fresh electoral mandate — at least more than the rest of the minor parties in the House, Maoist chairman Puspa Kamal Dahal should have been quickly appointed as the prime minister (recognizing that he is a cut above others in this regard). It would have been logical for the President, in such a situation, to ask Dahal either to form a consensus government, or failing it, go for a government with simple majority — in each case giving primacy to his first right to form the government. Article 55A of the Constitution, which provides for the vote of confidence, would have served as an important institution to oust the new prime minister, had he failed to muster necessary support. Apparently, the Maoists were not allowed to negotiate with the minor parties based on their newfound status in the House.
No doubt, both the President and the Maoist leaders were misguided about the applicable constitutional process. The President was advised to ask the CPN (Maoist) chairman — the leader of the largest party in the Constituent Assembly — to form a consensus within seven days to provide a new government to the people. Later, this one week bizarre timeframe was extended to another three days. The CPN (Maoist) chairman was then advised to go around seeking support of the other minor parties — without first asking the President to appoint him as the Prime Minister before he really started embarking on this process.
There was almost no difference of opinion among the major parties at that point that the CPN (Maoist) should be allowed to lead the new government by virtue of its status as the largest party in the Assembly. That was enough for the Maoist Chairman to make a claim, and the President to appoint him as the Prime Minister. Otherwise, how a party, which lacked simple majority in the House, could go on forming a consensus without getting an opportunity to deal with the rest of the minor parties from the position of power? Unfortunately, the Maoists, too, instead of going for matured legal advice, were persuaded to question the power of the President to consult lawyers and leaders of the parliamentary parties, and appoint the most feasible person as the next prime minister, at his personal discretion.
Ordinarily, in a parliamentary system which follows the Westminster practices, it is the power of the President to summon the leader of the majority party to form the government as soon as the results of the elections to the House of Representatives are declared. If a particular party is in majority in the new House, the President has no discretion in the matter. However, if no political party has clear majority in the House, the President can exercise his discretion in such a situation. In other words, it is his responsibility to invite that member of the House to form the government, who seems to be able to do it with a reasonable prospect of maintaining a government in office.
It is for the President to think how he can identify that person who might command a majority in the House of all these minority parties that we see in the Constituent Assembly. The President should of course take all relevant considerations into account and be at great pains not only to be constitutionally correct, but make every effort to see that the correctness is likely to be generally recognized. It is not binding for the President to consult the outgoing prime minister, or the Attorney General under his functional control. In any sense, he must appoint the man or woman who can form a government which will have the confidence of the House within a specified period.
Conclusion
A general election might produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders. Hung assemblies, with no party enjoying an overall majority, will doubtless continue to recur if the system of proportional representation that has been adopted becomes the rule in the future as well. This only means that the President has to recognize the first among the minor parties. The leader of the largest party could only be avoided as prime minister if it were clearly demonstrated to the President that a ‘copper-bottomed coalition government’ had been reached between other parties, and that their chosen leader was assured of majority support in the House. When there is no such situation, the President need not be constrained in appointing the leader of the largest party in the Assembly as the prime minister of the country. Unfortunately, it did not happen the way it should have happened.
(The author, a constitutional expert, can be reached at lawyers_inc_nepal@yahoo.com )
