By Nishan Khatiwada in The Kathmandu Post, June 03, 2023
The writer is a reporter covering national politics for The Kathmandu Post.
A President, the custodian of the constitution, becoming embroiled in controversies, and the general public, legal fraternity, and intelligentsia reiterating the proverb “jun jogi aaye pani kanai chireko” (effectively, ‘they are all the same’) to voice their displeasure has become the norm in Nepal, a republic.
“We have seen three presidents so far. All of them were entangled in controversies,” said Radheshyam Adhikari, a former National Assembly member and senior advocate. His comment comes on the back of a recent controversy involving the incumbent Ramchandra Paudel.
President Paudel has already attracted controversy in less than three months of assuming office. On Wednesday, he authenticated the bill to amend the Citizenship Act, which was twice snubbed by his predecessor Bidya Devi Bhandari, sparking criticism. Some constitutional experts say the constitution does not authorise the President to authenticate a bill that was endorsed by an earlier Parliament.
In another presidential exercise, Paudel pardoned the convicted Tikapur massacre mastermind and former lawmaker Resham Chaudhary. The move has met with widespread resistance and criticism. Legal experts say if such convicts are granted amnesty, impunity will rise. Not only the opposition parties, even key leaders of the ruling coalition have denounced the pardon. Nepali Congress General Secretary Gagan Thapa said party president Sher Bahadur Deuba had made a unilateral decision on the latest pardon.
“Our presidents have courted controversies due to their failures to rightly perceive their roles. The statute envisions a constitutional President,” added Adhikari. “Our President should act on the recommendation of the Cabinet or the Constitutional Council.”
The country’s first President, Ram Baran Yadav, plunged head-long into a major controversy in 2009, after he blocked then-prime minister Pushpa Kamal Dahal’s decision to sack the serving army chief Rookmangud Katawal. Yadav, who was believed to be loyal to the Koirala camp in the Nepali Congress, was also accused of lobbying against the Deuba faction in the party. On many occasions, Yadav allegedly interfered in the party’s internal matters from his perch in Sheetal Niwas.
Yadav’s tenure, however, was superseded by Bhandari’s in terms of controversy, say observers.
“Bidya Devi Bhandari’s tenure was controversial because she became partial—she hastily endorsed the recommendations of the KP Oli government and was reluctant to do so when Deuba led the government,” said Chandra Kanta Gyawali, a constitutional expert. “It seemed that she couldn’t detach herself from the UML.”
The Deuba government recommended an ordinance on medical education in October 2017, but Bhandari sat on the bill for around three weeks. Only after facing criticism and after the civil society members and activists had lodged an application at her office did she issue the ordinance on November 10, 2017.
Similarly, she allegedly waited for the UML’s green signal to issue an ordinance with regard to the National Assembly elections in December 2017, when the Deuba-led government recommended it, proposing a Single Transferable Voting System.
Bhandari, who had put ordinances forwarded by the Deuba government on hold for weeks, hastily approved KP Oli’s controversial decisions. On December 20, 2020, Bhandari endorsed the recommendation of the Oli Cabinet to dissolve the House, without giving it a second thought. Three months later, Oli again dissolved the Supreme Court-reinstated House. Bhandari endorsed it quickly after midnight of May 21, 2021.
President Bhandari drew a lot of flak in the case of the citizenship bill. The process of authenticating the bill to amend the Citizenship Act was initiated in July last year. After both chambers of Parliament first endorsed the bill and sent it to the President, she sent it back with her 15-point concern.
However, the federal parliament endorsed the bill without any changes and without detailed discussion. When re-sent for authentication, Bhandari sat on the bill, allowing the 15-day deadline for stamping it to pass. The constitution envisages that the President endorse the bill in case it comes to the person, a second time.
The constitution detaches the President from past party affiliations and expects the person holding the office to be non-partisan and maintain the institution’s sanctity. But that objective has not been served in our case. The parties consider the Office of the President as just another post to accommodate their confidants who could be relied upon to decide in their favour at crucial junctures, observers say.
“The President’s position is neutral—and to be neutral, the background of the President should also be supportive of the role. Unfortunately, all three of our Presidents have been seasoned political leaders,” Bhimarjun Acharya, a constitutional expert, said. “I see a fault in the selection process.”
All the Presidents so far have come from active political backgrounds. Yadav was a joint general secretary of the Nepali Congress while Bhandari was a vice-chair of the CPN-UML. The incumbent, Paudel, was a senior Congress leader.
Political analyst Sanjeev Humagain holds the parties responsible for dragging the presidential office into controversy. “They believe the presidential office’s support is necessary to survive in power and politics,” said Humagain. “They often lean on the President to help them remain in power.”
Excessive haggling for the presidential position in the run-up to the last elections worried watchers. Political equations changed before Paudel was made the ruling alliance’s common candidate.
“They have been making the position a political bargaining chip—they form electoral alliances as if it were an executive position, clearly reflecting their intent to misuse the office,” said Gyawali, the constitutional expert. “The President is the head of the state; not the president of a party or a coalition.”
The way out
The President should work as per the recommendations of the government or the constitutional agencies. But there are instances that our presidents have been mired in controversies after endorsing controversial moves of the government.
Gyawali said in controversial cases, “the President can go through the content and offer suggestions to the government with better ideas.”
According to another constitutional expert Acharya, the role of the President is neither too active nor totally passive. “The President is considered to be the adviser to the Cabinet. The President is also the philosopher of the Cabinet, and the custodian of the Constitution.”
According to experts, the government is also a major factor in sullying the office’s reputation. A constitutional president must endorse what the government recommends and decides. Acharya said the parliament and the government often assume that they are the ones who make presidents, and expect the presidents to follow their instructions.
The President can authenticate the bills and issue ordinances. A presidential seal is a must for a bill to become the law. Article 232 (3) of the Constitution says that the President can dissolve a provincial assembly if the assembly acts in a way that undermines the sovereignty and territorial integrity of the country. But a new assembly must be elected within six months of the dissolution.
If a President plays his or her constitutional role responsibly, the responsibility for any controversy should be borne by the government itself, said Gyawali.
https://kathmandupost.com/national/2023/06/03/why-do-nepal-s-presidents-often-find-themselves-in-controversy
