Category: Lectures / Speeches / Presentation

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(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 )

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(Presented in the forum of Independent National Commission for Human Rights INCHR on 8 November 2004 in Monrovia, Liberia)

On 19 August 2004, the United Nations Mission in Liberia (UNMIL) received the Act establishing the Independent National Commission on Human Rights (hereafter “the draft Act”) drafted by the National Transitional Government of Liberia (NTGL) with a request to provide comments for its further refinement.

The Independent National Human Rights Commission (INCHR) is established under Article 12 of the Comprehensive Peace Agreement, and the NTGL should be commended for the speed with which it has prepared this draft. This explanatory memorandum not only analyses the features of the NTGL draft, but also comments on the improvements that the UNMIL considers important, including justification for the change.

Fundamentals of the Draft Act
The Government draft tries to capture many important features of a good national institution – its mandate trying to guarantee the type of independence, composition, and adjunct powers that are clearly explicated in the Paris Principles of 1993 concerning the status, powers and functioning of national human rights institutions. They show the willingness to create a national human rights institution of an acceptable standard. 
Powers of the INCHR

Article III states the powers of the Commission including the power to investigate human rights complaints, conduct hearings, make determinations and recommendations, monitor human rights violations and give advice and assistance in the implementation of national and international human rights standards, etc.

Article IV lists the functions of the INCHR to carry out these powers. In this Article, the role of the INCHR as a tool for human rights education is highlighted.

Article V provides that where any person refuses to appear before the INCHR, it may apply to the County Circuit Court for a subpoena to compel attendance.

Article VI establishes the categories of person who may be granted immunity from prosecution by the INCHR following their cooperation with investigations, hearings etc.

Article VII empowers the INCHR to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

Composition and structure of the INCHR
Article VIII establishes the composition of the INCHR as being a Chairperson and six Commissioners and deals with the required qualifications.

Article IX lists the functions of the Chairman of the INCHR.

Article XI provides the role of the INCHR Executive Director.

Article XII describes the structure of the INCHR and lists its five departments.

Article XIII provides for the replacement or dismissal of a Commissioner.

Article XIV provides for the good behavior tenure of each commissioner.

Article XV attempts to deal with the non-political nature of the INCHR.

Article XVIII grants the INCHR the status of a non profit organization and a tax exempt standing with duty free privileges.

Article XIX stipulates rules about accountancy, transparency and funding in order to enhance the operational efficiency of the INCHR.

Many good Articles of the Government draft like Article III dealing with power of the Independent National Commission on Human rights; Article IV dealing with functions of the Commission; and Article XVI dealing with its subject matter jurisdiction aim at capturing some of the fundamentals of the national institutions. The draft also tries to give the Commission a broad mandate based on the Constitution and universal human rights standards and attempted to ensure autonomy from government in its subject matter jurisdiction. Article V of the Government draft gives the Commission powers to bring under its jurisdiction those accused of human rights violations based upon complaints from the aggrieved parties. In cases the accused refused to appear before the Commission, the Commission is empowered to apply to any Circuit Court for a writ of arrest to compel the accused to appear before it. Article VI talks about the immunities from prosecution for those whose cooperation for the Commission is considered crucial to bring the other significant human rights violators on board. The draft Act also gives discretion to the Commission not to investigate a case when it is found frivolous or vexatious. Above all, Article VII empowers the Commission to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

In the organizational side, Article VIII of the Government draft deals with the composition of the Commission. Article XIII deals with replacement or dismissal of a commissioner when there is a need for it. Articles IX – XI deal with the functions of the Chairman, Vice-Chairman and Executive Director. However, they touch on the related issues briefly. Article XIV provides that each member of the Commission is to hold office during good behavior. Article XV intends to deal with the non-political status of the Commission, although the details specify something else. Article XII divides the Commission into five Departments according to the Commission’s functional requirements. Article XVIII gives the commission the status of a non profit organization and a tax exempt standing with duty free privileges. Also provided are the provisions regarding accountancy, transparency and funding, which in order to enhance the operational efficiency of the Commission.

Overall, the draft shows a general willingness on the part of the Government to create a national institution capable to meet the current requirements of Liberia.

Rationale for Proposed Amendments 
At a UN-sponsored meeting of representatives of national institutions in Paris in 1991, a detailed set of principles known as the Paris Principles on the status of national institutions was developed, which must be complied with as the minimum bench mark for a national institution like the INCHR. These principles, subsequently endorsed by the UN Commission on Human Rights and the General Assembly, have become the foundation and reference point for United Nations activity in the area. These Principles are important because they sets out to clarify the concept of a ‘national institution’ by providing minimum standards on the status and advisory role of national human rights commissions.

The Government draft gives a good beginning. This draft is a brief document intending to deal with many important issues in a few Articles, selectively, and often with shorthand expression with the potential of leading to confusion in their interpretation. Similarly, the draft also lacks some additional substantial provisions, providing comprehensive legal norms for its operations.

These comments point towards the need to build on these provisions and expand them to further consolidate the provision regarding – competence and responsibilities of the Commission; composition and guarantees of independence and pluralism; methods of operation; and additional principles concerning the status of the Commission which has to work with quasi-jurisdictional competence. The Commission needs various civil court powers to exercise its power of inquiry and investigation, and also needs various remedial options upon the completion of an inquiry or investigation under the Act. A system of checks and balances is also necessary to ensure that the appointment process of the Chairperson and other commissioners is politically neutral. While the terms of office have been unlimited, with good behavior tenure, there is no guarantee for a pluralistic and representative composition. This is important for ensuring independence from the executive branch.

The emplacement or enhancement of a national human rights protection system in each country, reflecting international human rights norms, is the principal objective of the United Nations Organization in the human rights sector. An independent national human rights institution can be an integral part of such a national human rights protection system. Such an institution at the country level is what in the long run will ensure that human rights are protected and advanced in a sustained manner.

To ensure its effectiveness, the Commission must be independent from the Government. In order to achieve this goal, the Paris Principles identified three conditions. First, the composition of any national institution and the appointment or election of its members shall reflect pluralist representation of the social forces of the society, such as NGOs, universities qualified experts, parliament members, trends of philosophical or religious thoughts and government departments. Second, a national institution shall have the infrastructure that allows for the smooth conduct of its activities, in particular, adequate funding, and qualified staff. Finally, the appointment of members of a national institution shall be by official act, which establishes the specific duration of their mandate, so as to ensure fearless and impartial action in defense of human rights.

Concerning the relations between a national institution and the UN, the Paris Principles stated that one of the functions of a national institution is “to cooperate with the United Nations and any other organization in the United Nations system”, and “to contribute to the reports which States are required to submit to United Nations bodies and committees … pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence.” This must be adequately reflected in the proposed law.

It should be noted that while the Paris Principles are a good starting point for analysis of the draft Act, they are not enough to create a system. As such, the proposed amendments, which have been incorporated in the accompanying text, attempt to make the INCHR a strong, effective, and sustainable institution by going beyond the Principles and adapting from the experience of other similar institutions around the world.

Proposed amendments as contained in the revised draft
The Preamble now contains a clear reference to Liberia’s commitment to the Universal Declaration of Human Rights (1948), which has been accepted around the world as the codification of the customary international law of human rights.

Article III dealing with the power of the INCHR has now been restructured giving “general competence” to the Commission to protect and promote human rights, reflecting on the Paris principles. Section 2 provides an internationally accepted definition of “human rights”, in order to avoid any confusion in the future application of the law. Without affecting the “general competence” of the INCHR, Section 3 now elaborates some of its powers in accordance with those set out in the Paris standards. In particular, it is proposed that the Commission be authorised and empowered to inquire a case on suo motu basis [Article III.3 (a)]. Further, it is proposed that the INCHR be empowered to intervene, subject to approval of the court, in any proceeding involving any allegation of violation of human rights pending before a court. [Article III.3 (h)].

Article III also contains clear provisions on the INCHR mandate to receive complaints and investigate individual human rights violations. It has now various civil court competences to exercise its power of inquiry and investigation, and can choose various remedial options upon the completion of an inquiry or investigation under the Act. In this case, the INCHR may seek to settle a dispute by consultation or mediation between the individual and the governmental body; to inform the alleged victim(s) of their rights; and of the hearing of their complaints, or alternatively to transmit them to another competent authority. 

Article IV now expressly guarantees the authority of INCHR to provide advice to the Government. INCHR may submit, by a request of competent authority or upon their own initiative, opinions, recommendations and reports on any matter concerning the promotion and protection of human rights. Such advisory action include the review of draft legislation and administrative actions and proposals to amend existing legislation or initiate new drafts in order to improve the general human rights situation or stop certain violations; preparation of national human rights reports. 

Article IV is amended to strengthen INCHR’s role as the primary advisory body to the Government on the implementation of Liberia’s international human rights obligations. The INCHR has the responsibility to promote and ensure the harmonization of national legislation and governmental practices with the international human rights instruments to which Liberia is party; to encourage ratification of, or accession to, these instruments, and to ensure their implementation.

Article V is a new addition to the draft. It establishes the operational method for the Commission. In view of the mutually beneficial relationship between NGOs and national human rights institutions, this proposed Article expressly provides that the INCHR shall develop relations with the human rights NGOs and other civil society groups.

Article VI is amended to strengthen the quasi-judicial status of the Commission. The proposed amendment bestows on INCHR those powers necessary for the inquiry or investigation of human rights violations. Going beyond the provision of subpoena power, the proposed amendment empowers the Commission to exercise the power of discovery and production of any document, receive evidence on affidavits, requisition any public record, issue commissions for the examination of witnesses or documents, etc.

The new provisions included in Article VI of the revised draft entitle the Commission to take any of the several steps upon the completion of an inquiry or investigation held under this Act. They provide clear cut guidance to the INCHR on how to handle the case it decided to take up.

Articles IX – XI elaborate on the original draft Act’s provisions regarding the composition of INCHR, the qualifications of Chairperson and other Commissioners, their functions, and the rules for the Commission meeting, and the rights and responsibilities of the Executive Director. All inadequacies in the original formulations have been supplemented with adequate provision. It has now been expressly stated that the decision of the majority of the members of the commission present at a meeting thereof shall be the decision of the Commission and in the event of an equality of votes concerning any matter, the member presiding shall have a casting vote.

Article XIII of the original draft has been revisited to create a suitable internal structure for the Commission. The revised structure makes it possible for each department within the INCHR to specialize on its area of competence.

Article XVI is a new addition to the original draft. Some important rules have also been developed to guarantee the independence of the employees of (or those working for) the Commission.

Article XIX now includes a number of new provisions to better regulate issues involving funding, accountability and transparency. A new section added to this Article maintains that the INCHR, to exist and function as a full autonomous body both with respect to its administration and finances, shall have financial autonomy and its budgetary allocations be not in any way connected to or place under the budget of any other agency, ministry or institution of the Government.

Article XX deals with many crucial provisions not included in the original draft but which will be essential for the efficiency of the INCHR. One ideal provision states that all organs of state shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission. Another significant provision states that notwithstanding anything contained in this or any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, for purposes of investigation and prosecution. This means that the human rights responsibility of the Government is not over just by creating the INCHR.

Article XX also provides that the INCHR may delegate its powers, frame its own rules, and the power to remove difficulties in the implementation of this Act. Similarly, it also provides that all communications of the Commission to the Government shall be channeled through the Office of the President. This provision helps to establish the high status of the INCHR within the administration of the Government.

While the Paris Principles are a good starting point as normative principles, their limitations are best illustrated through an examination of the record of activities of human rights commissions. As such, the present draft tries to make the INCHR strong, effective, and sustainable institution, by going beyond, and learning more from the experience of other similar institutions around the world.

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