E-Kantipur

KATHMANDU, SEP 03 -

Three months after the dissolution of the Constituent Assembly, parties are at odds over not only how to write the new constitution, but also the interpretation of the current interim one. Among the plethora of issues, those regarding ordinance and the power of the president have been the most contentious in the present constitutional ‘vacuum’. To better understand the nuances of this constitutional emptiness, the Post’s Gyanu Adhikari spoke with veteran lawyer Purna Man Shakya, who has been engaged in the constitution-making process as a consultant. Excerpts:

The opposition parties are urging the president to reject ordinances issued by the government. Is this constitutional?

The opposition’s call to the president to reject the ordinances recommended by the cabinet is a very political move. As per the constitution, the executive power lies with the cabinet. But because the cabinet is presently a caretaker one, it has to recommend only those ordinances which are absolutely necessary for taking care of the country and its governance. If the ordinance is necessary for that purpose, then the president has no authority to say no. In short, the president should not take any steps which would create problems for the present government to take care of the country.

But how do you decide which are essential ordinances? For example, the ordinance to fill the vacant position of constitutional bodies, is that essential?

Most of the constitutional bodies are going to be vacant soon. Without these bodies, and without the judges in the Supreme Court, the whole system will collapse. These bodies are basically there to check and balance the government, and to prevent it from becoming arbitrary.

So they are essential?

Very much so. Without these bodies

the government can become tyrannical any time. It’s essential that vacancies in these bodies are filled up and they remain operational as per the constitutional scheme. The only institution at present to check and balance the government on the issue of ordinance is the president. There’s no doubt about it. If the president is not happy and if he feels that the matter is not so urgent for a caretaker government to take up through ordinance, then he should be able to convince the government.

That’s the ideal. What if there’s a dispute between the two?

Then the president should give in to the government, because it is the government which will ultimately go to the people to justify its moves. The president is not going to the people. So giving in to the government is better in terms of accountability. Also, the president office is like an emergency light. It should flash only in emergency. It should become relevant as the most effective institution to check and balance only in cases where the whole constitutional regime is in threat.

It’s like a double-edged sword. If he misuses it, it could backfire.

How could it backfire?

Right now the opposition is saying that the president should reject the ordinances recommended by the government but what if the opposition party is put into power? It cannot run the government without ordinances. They have to think seriously about that.

Some claim that PM Bhattarai is starting a “regime of ordinance” which is going to turn into an authoritarian run with ordinances. Do you see that danger?

If the present government doesn’t take initiative to resolve the crisis and go for elections, and if the government tries to continue to rule through ordinances  for a long time to come, then you can raise those questions. But as long as the government is working for political consensus for election in the near future, it has the responsibility to take care of the country and governance. In that process, if it needs to get something done through an ordinance, it is justified.

Staying on the theme of presidential powers, some opposition leaders have said the president can sack the prime minister. Would such action be constitutional?

The constitution has no provision for the dismissal of the government by the president. But then there is one provision in the constitution which gives some scope for the president to act as a check against the government. The president has been designated as a guardian of the constitution. As a guardian, he not only has the responsibility to abide by the constitution, but also to insist and require the government to comply with it.

This power, however, cannot be exercised by the president unless the government becomes a threat to democracy, constitution, rule of law and human rights. This has to be proved beyond reasonable doubt for the president to take action.

Proved in the court or the arena of public opinion?

In the sphere of public opinion—and in the objective evaluation of the office of the president. This may become necessary only in extreme situations. As long as the caretaker government is functioning as per the norms of the constitution, the president has no power and no role to play in dismissing the government.

It seems to me that you’re saying that the president can sack the government if he can manage public opinion.

He can exercise power as a guardian of the constitution, not as a political boss. That distinction has to be clearly understood. He as a guardian of the constitution can exercise certain prerogatives. But this should be beyond any question. He cannot act on grey, controversial areas.

Let’s talk about the way ahead. The three parties are talking again after three months of the CA dissolution and have floated CA revival as an option. Is revival an option given that it was the Supreme Court that prohibited a CA extension?

Revival of the CA would mean that we’re departing from this constitutional regime. Revival would mean that it’s a new political move. If it is supported by the people of Nepal, it will attain legitimacy. If not, it will not have legitimacy because the constitution doesn’t have a provision for a revival of the CA.

Would a CA revival mean we’re no longer under the Interim Constitution?

Yes. It’d be outside the constitutional regime.

How do you think the Supreme Court will react to a revival?

The Court will probably oppose it.

But it’s up to the people and the political parties to make this revival process a political reality. If they are able to push through a constitution and promulgate it and attain the overwhelming support for the constitution from the people then that constitution would give legitimacy to the rest of the regime. And the Court’s opposition will go into oblivion.

A related question: the opposition has termed the call for a new CA election by the present government unconstitutional. The government’s claim is that his call steps on the Court verdict therefore it can’t be unconstitutional. What’s your take on this?

If we are able to have a successful election and if that elected assembly can deliver the constitution, then the legitimacy of that constitution will come from the mandate of the people, not from this Interim Constitution. In either case, whether you go for revival of the CA, or electi on for a new CA, the legitimacy would have come through the people’s mandate, rather than Interim Constitution.

Can you expand on that?

There is no provision in the Interim Constitution that supports either a revival or new CA election. Ultimately, everything will depend on the people’s mandate. Take the example of the revival of the parliament after the 2006 Jana Andolan. It was unconstitutional. But it continued to get legitimacy because it was the people who restored the parliament. The pressure from the people’s demand meant that the king had no option other than to revive the parliament. It’s a political question, not a constitutional one.

Technically, it would make no difference if the new constitution is made by the CA  or other methods, such as a commission as in 1990?

CA symbolises ultimate expression of the sovereignty of the people. There’s no doubt about it. But that’s not the only option. Even if the constitution is made by any other representative body, as long as it’s accepted by the people, it’d be legitimate.

Finally, do you think the judiciary is becoming more powerful compared with other branches of the state, especially after the CA dissolution?

I would say the judiciary is getting more powerful, and it’s playing the role of an opposition. There is no parliament, no opposition party to check and balance the government, so the people flock to the Supreme Court to check the government.

Is that healthy for democracy?

As long as they limit the matter to the illegality of government action, it’s healthy. But when they start involving the Court in political matters and if the Court starts involving itself in political matters, it becomes very controversial.

 

Posted on: 2012-09-03 08:00

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