President Ram Chandra Paudel authenticated the Citizenship Bill that was passed by the previous parliament.
This has created a strange situation—he has authenticated the bill sent by the parliament whose one part (the then House of Representatives) no longer exists.
A new HoR is in existence after the federal election in November 2022. President Paudel has authenticated the bill that was not passed by the new HoR. This should not have happened.
We have arrived at this situation due to the mistake committed by then president Bidya Devi Bhandari. Current President Paudel has committed another mistake while correcting that mistake on the request of the Cabinet. He has authenticated the bill arguing that he is constitutionally and morally mandated to comply with the Cabinet’s request.
The government that requested for committing this mistake, therefore, must take responsibility for this. The government had the option of taking a new bill to the current HoR and passing it with majority. But the government chose an easy and illegal path on the pretext that the main opposition CPN-UML would protest and even obstruct House proceedings thereby obstructing passage of the bill.
Legality of the amended Citizenship Act would be tested if anyone moved the Supreme Court (SC) against the authentication. The apex court can rule on the issues including whether the president is mandated to authenticate a bill passed by the House and whether the president can authenticate a bill that the previous president refused to authenticate. The SC can also speak about whether a bill automatically becomes law if the president refuses to authenticate it as mandated by the Constitution.
The sad part of this is that the country will now have to suffer unnecessary hassle for some time. The country will now be stuck in the dispute as to whether President Paudel was right to authenticate the bill.
Those who had protested against then president Bhandari’s refusal to authenticate the bill, have moral rights to oppose the step of President Paudel. But those who had argued that Bhandari was right to twice refuse to authenticate the bill passed by the parliament don’t have the rights to protest against the step of Paudel.
What Bhandari did in capacity of president was not just unconstitutional but even unimaginable. Can she refuse to administer oath of office and secrecy pointing she doesn’t like the prime minister elected by the House or not? Can she refuse to administer oath of office and secrecy pointing she doesn’t like the person picked as chief justice (CJ) or chief of any other constitutional body and endorsed by the House after parliamentary hearing or not? Can she refuse to implement any decision made by the Cabinet pointing she doesn’t like the decision?
The answer is straightforward—she cannot.
But she did so and refused to authenticate the bill that was twice sent to her after being passed by the House. She insisted that she was above the parliament.
The House should either have impeached her or moved the court seeking legal remedy at that time. Her move should have been resisted from the streets if both of those options were not possible because the president does not have the rights to defy the Constitution. But the parties did not choose to politically resist her unconstitutional step or seek legal remedy as the HoR was already dissolved and the country was facing elections. She got away with the crime.
The Constitution of Nepal does not grant any right to the president to take initiative and work. Our Constitution, in that sense, considers the post of president to be absolutely ceremonial. Let us see what the Constitution has to say about the president. Article 61 says four things about the president.
(1) There shall be a President of Nepal.
(2) The President shall be the Head of State of Nepal. He or she shall perform his or her functions in accordance with this Constitution and federal law.
(3) The President shall promote national unity of Nepal.
(4) The main duty of the President shall be to abide by and protect the Constitution.
The Interim Constitution 2007, which was in effect before the current one was promulgated, had mentioned that ‘the main duty of the President shall be to protect and abide by the Constitution."
The order of protect and abide by was changed in the current Constitution promulgated in 2015, and abide was written first followed by protect.
The spirit of the current Constitution is clear—the president can protect the Constitution only by abiding by it. The president cannot refuse to abide by the Constitution on the pretext of protecting it. The president not abiding by the Constitution is dereliction of duty.
Let us be clear, anybody inciting the president to cross the limits of Constitution is inciting for dereliction of duty.
Article 66 further clarifies about the functions, duties and powers of president:
(1) The President shall exercise such powers and perform such duties as conferred on him or her in accordance with this Constitution or the federal law.
(2) In exercising the powers or duties under clause (1), the President shall perform all other functions to be performed by him or her on recommendation and with the consent of the Council of Ministers than those functions specifically provided to be performed on recommendation of any institution or official under this Constitution or federal law. Such recommendation and consent shall be submitted through the Prime Minister.
In this way, the president is clearly bound by the Constitution. The president performs functions on the recommendation of the Cabinet or on the recommendation of some other body or official clearly designated by the Constitution. The Constitution has not given the president the right to take a decision or execute any work regarding the country and government affairs on her own. The Constitution has also not given the president the right to take away the rights granted to others. Therefore, our president is a ceremonial president bound by the Constitution.
Despite such clear provisions regarding the president’s rights and duties, Bidya Devi Bhandari had assaulted the Constitution by not authenticating the bill. And the main opposition party UML had incited her for the assault. Several UML leaders including the chairman had defended the assault. Therefore they now don’t have the moral right to oppose President Paudel’s move.
Others can, however, oppose the president’s move and challenge it in court. The court’s interpretation will provide an outlet to this dispute too, and will set a precedent for the future. It is precedents like this that will continue to further refine and establish the Constitution.
For now, though, there’s a pleasant side to the president’s move: nearly 700,000 people have been deprived of citizenship even though they are children of Nepalis who became citizens by birth through a one-time arrangement after the Janaandolan II in 2006; they will now get citizenship immediately. They will get justice. Their lives will move ahead exercising their rights as Nepali citizens.
