“There shall be a President of Nepal.”
“The main duty of the President shall be to abide by and protect this constitution.”
That’s what Articles 61 (1) and Article 61 (4) of the Constitution of Nepal, 2015, state.
That Bidya Devi Bhandari is the President of Nepal suffices Article 61 (1). But what about Article 61 (4)?
Constitutional experts and political analysts say Bhandari as the President has not only failed to uphold Article 61 (4) but also disgraced the high office by her actions, by being complicit with the executive in its every unconstitutional move and by not playing the role expected of her to protect the constitution.
On Friday, past midnight, Bhandari dissolved the House of Representatives, for a second time in five months, at the behest of Prime Minister KP Sharma Oli whose utter disregard for the constitution has been on display on many occasions in the past.
But before dissolving the House, President Bhandari dismissed the claim made by Sher Bahadur Deuba, the Nepali Congress president, to form a new government. In doing so, she, however, also said the claim made by Oli also was insufficient.
Experts say the question that Bhandari should have asked is if the signatures of 149 lawmakers provided by Deuba to stake claim to the government were authentic, as Oli was automatically not qualified to lay claim, as he is already a prime minister and no constitutional provision allows an incumbent prime minister to seek to become prime minister.
“What Oli says has become the constitution now,” Lok Raj Baral, a former professor of political science at Tribhuvan University, told the Post. “Oli does not have a scintilla of respect for the constitution. But despite Bhandari being the protector of the constitution, she has been complicit with Oli.”
When Nepal transitioned into a federal republic after overthrowing the centuries-old monarchy, the constitution envisioned a “constitutional” President–with no executive powers–so as to safeguard the constitution, maintain national unity and work as the guardian of the people.
But nowhere in the constitution does it say the Head of State cannot use his or her conscience to differentiate between the right and the wrong, say experts.
That Oli had demanded that Article 76 (5) be invoked was wrong, prima facie, according to the experts, as for the invocation of the article, the prime minister, elected under Article 76 (3) either has to fail a trust vote or has to resign.
But President Bhandari complied with Oli. Oli’s claim, despite being a prime minister, that he should be appointed prime minister again was simply ludicrous, but then she complied with him again, experts say.
Dinesh Tripathi, a senior advocate who specialises on constitutional law, said what happened on Friday night was the result of Oli’s well-planned conspiracy.
“Oli wanted to dissolve the House by violating the constitution and Bhandari played the role of his sidekick, not the role the constitution wants her to play,” said Tripathi.
According to Tripathi, Friday’s House dissolution, a decision from the Office of the President came at 1:49am, also contradicts the Supreme Court’s February 23 verdict.
In the verdict overturning Oli and Bhandari’s December 20 decision to dissolve the House, the Constitutional Bench said the House can be dissolved only after going through the government formation process following Articles 76 (1), 76 (2), 76 (3) and 76 (5).
But Bhandari, on the recommendation of Oli, dissolved the House without letting Article 76 (5) come fully into play.
After the 2017 elections, when Oli became prime minister in February 2018 under Article 76 (2) with the backing of the Communist Party of Nepal (Maoist Centre), as his UML party, which won 121 seats, lacked the majority to form a government on its own. But after the merger between the UML and the Maoist Centre to form the Nepal Communist Party (NCP), he commanded the majority. Hence, he became prime minister under Article 76 (1).
Source: Kathmandu Post
