Friday, 28th November 2014

The President versus the PM


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Almost two months have passed since the CA election, and the fact that the political parties have still not been summoned to an inaugural session of the Constituent Assembly (CA) sends anything but a positive message to the people.  In effect, the on-going confrontation between President Ram Baran Yadav and the Head of the Interim Election Government, Khil Raj Regmi, has injected much confusion into Nepali politics. Each is prepared to do battle with the other over who should actually call the first session of the new CA. The Interim Constitution of Nepal, in fact, states that it is the responsibility of the prime minister, the chairperson of the Council of Ministers. However, one needs to compare the circumstances in which that constitution was drawn up with those that prevail at present.

International practice and democratic values around the world demand that the head of the state summon such a meeting. President Yadav and some of the political parties naturally argue, therefore, that practices and conventions worldwide favour the head of state. Regmi and others choose to cite the precedent created by the demised first CA in 'our own country': that was summoned by the late Girija Prasad Koirala in 2008 when he was PM but also acting the head of state. This political debate is now being considered in the Supreme Court. However, we ourselves should ask a few questions regarding the current ‘battle’. What, for instance, does the existing Interim Constitution - if it is still relevant and functioning – actually say about it? Is a rigid implementation of the constitutional provision possible in our changed political context? What, moreover, was the real intention of Article 69(1) of the said constitution? Many other relevant questions also need to be asked. Who really should have authority to summon the first session of the Assembly? What does international practice and tradition say about such matters?  What is the role of the head of state in our context? Should we not be anxious to establish good traditions from the very outset? Is there really any need at all for this debate?

Firstly, Article 69(1) of the Interim Constitution 2007 must be examined very closely. It contains a provision that ‘the first meeting of the Constituent Assembly shall be held, as summoned by the Prime  Minister, within twenty one days of the final results of the election of members of the Constituent Assembly has been made public by the election commission’.  Is it right that we should take this provision literally today as we find ourselves in a different phase of political development? If we were to follow the provision strictly, the PM would have sole authority to summon the first session of the new CA, but can we say for certain that that would have been the real intention of the constitutional drafters? The answer has to be absolutely no.

To justify this conclusion, we have to analyse the particular political circumstances prevailing when the constitution was being formulated. Then, in 2008, the institution of monarchy (or head of the state) was suspended, and during the election of the first demised CA, Prime Minister the late Girija Prasad Koirala was himself acting additionally as head of state. The office of President, of course, did not even exist in the country at that time. The constitution, therefore, included provision for the head of the government to summon the first session of the first CA. Thus it fell to Girija Prasad Koirala as PM and acting head of the state to summon the first session of the newly elected grand-assembly. I am, therefore, strongly of the opinion that the real intent of the constitution is not that the PM should now summon the first meeting of the CA. To me it absolutely indicates that the President should perform this task. The precedent of 2008 is irrelevant in our changed political situation. It was a different political situation at that time, and the drafter of the constitution had also to take note of public anti-monarchy sentiments of the time. Today we have an elected President from the first demised CA, and without doubt he has the constitutional authority to summon the first session of the new CA. The literal interpretation of the Constitution in today’s circumstances, therefore, becomes meaningless.

Secondly, international practice and established political customs around the world provide that it is the head of the state who summons the first session of any elected body such as a parliament or any political body of peoples’ representatives. It is the prerogative of the president or head of the state. In our context, too, norms of the Interim Constitution demand this and, I believe, this is the real intention of the drafter of the constitution as well.

Thirdly, in the context of our constitutional norms and values, the institution of President is highly respected in that it stands above politics and political controversy and acts as guardian of the nation. The President has few constitutional roles, and they are mostly non-political. I strongly believe that to gain greater respect for the dignity of the institution, the President deserves immediately to exercise his right to summon the first session of the Assembly. The matter should never have been a matter of political or constitutional debate: the issue is quite straightforward.

Finally, as a very young republic, we are still coming to terms with having a presidential system. I believe strongly that we must develop worthy political traditions and customs from the outset if we wish to see the norms and values of democracy flourish in the country. For Regmi, the caretaker head of government, to summon the first session of the new Assembly would be to establish a wrong tradition in our country.  It could easily provide a basis for future conflict between the two institutions over power and authority and, most importantly, over personality and superiority. Even the present conflict between president and head of the interim government is, I believe, little more than one of personality. To achieve a fresh start and to establish a fit and proper tradition in our country, the President should at the earliest opportunity call the first session of the new house without delay.

The nation must prepare for a grand departure of both individuals once their task is done. The new mandate demands a new face at the Sital Niwas. The first CA session must be called as soon as the Apex Court provides its verdict on the issue. The political parties must then make haste to form a new government, and a commitment to formulate a fully-fledged democratic constitution within a year must become the dedicated aim of every political party and of every politician. The nation eagerly awaits this outcome.

Dr Basnet is a Human Rights & Constitutional Law Lawyer. Contact at: This email address is being protected from spambots. You need JavaScript enabled to view it. .


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