President rejects citizenship bill, tramples on the constitutionHer refusal will deny state ID to half a million people who awaited the bill’s passage.
Tika R Pradhan & Purushottam Poudel
The nascent federal democratic republic is at another turning point. For the first time since the promulgation of the new constitution in 2015, the ceremonial head of state has defied Parliament—and thereby brazenly violated the constitution.
The constitution clearly defines the President’s roles, responsibilities and jurisdiction.
Defining the functions, duties and powers of President, Article 66 (2) states, “In exercising the powers or duties under clause (1), the President shall perform all other functions to be performed by him or her on the recommendation and with the consent of the Council of Ministers than those functions specifically provided to be performed on the recommendation of any body or official under this Constitution or Federal Law. Such recommendation and consent shall be submitted through the prime minister.”
But President Bidya Devi Bhandari, who has been expressing her reservations against several provisions of the bill to amend the Citizenship Act-2006 despite her ceremonial role, has refused to authenticate the bill, thereby affecting at least half a million stateless people waiting for the bill’s passage to get their national identity cards.
With the President’s refusal, the proposed amendments will now be rendered null and void, leading to a potential confrontation between Singha Durbar and Sheetal Niwas.
Political parties are also divided—the ruling coalition of the Nepali Congress, the CPN (Maoist Centre), the CPN (Unified Socialist), the Janata Samajbadi Party and the Rastriya Janamorcha, along with the Loktantrik Samajbadi Party, are in favour of the bill, while the CPN-UML has been backing the President’s call for its thorough review.
Both the camps, for and against the bill, are set to take up the issue of the citizenship bill as an election agenda as the public also remains divided on the issue.
Ever since the bill was presented to her for the first time on July 31, President Bhandari had been consulting various experts and stakeholders, which many constitutional experts and observers said was beyond her jurisdiction as a ceremonial president and warned of grave consequences.
However, the Office of the President claims that her move is in line with the constitution.
“The President has been acting in line with the constitution,” said Lalbabu Yadav, political affairs adviser to President Bhandari. “The bill has violated different constitutional provisions and the President has the responsibility to safeguard it.”
Bhandari was irked by the ruling coalition’s refusal to make any changes in the bill even though the President had sent it back along with a 15-point suggestion to the legislature.
Many have taken Bhandari’s latest move not to authenticate the bill as a matter of “ego” against the ruling coalition.
Legal experts said the President has no right to reject the decision of the executive and Parliament, which is tantamount to a ‘pocket veto’. In other words, she is trying to exercise the executive right she does not have.
“It’s not for the constitutional president to examine the constitutionality of the bill. Such a concern will be tested by the constitutional bench of the Supreme Court,” said senior advocate Chandra Kanta Gyawali, who is also a constitutional expert. “If the bill creates any problem, all the blame will go to the political parties and the government.”
Now the Supreme Court’s constitutional bench can issue a mandamus order to the President if someone registers a writ petition, forcing her to authenticate the bill.
This is not the first time that the President has blocked or unnecessarily delayed the executive’s recommendations.
On February 9, 2018, then Sher Bahadur Deuba-led government had asked the President to appoint Krishna Prasad Poudel, Chandani Joshi and Gopi Lal Basnet as National Assembly members. However, she didn’t and deferred the matter until the government changed. Deuba was replaced by KP Sharma Oli on February 15 of the same year and his government withdrew the names and recommended new faces. President Bhandari promptly endorsed the Oli Cabinet’s nomination of Yubaraj Khatiwada, Ram Narayan Bidari and Bimala Rai Poudyal.
Bhandari, stepping on the constitutional provision of Article 113(3), had earlier returned the bill to amend the Citizenship Act to the House of Representatives for a review after sitting on it for 15 days.
Earlier, Speaker Agni Sapkota had sent the bill to Sheetal Niwas on July 31 for authentication after the lower house endorsed it on July 22, followed by the upper house on July 28.
A bill, passed by both the houses of Parliament, becomes a law only after it gets the presidential seal.
Legal experts, political leaders and analysts have condemned the action of the President saying it would set a bad precedent and do irreparable harm to the constitution.
Former justice of the Supreme Court Balaram KC said Bhandari never was fit to be President given her tilt towards the UML, the party which elevated her to the country’s highest office.
“As per the constitution, she can only send the bill back to the House of Representatives for a review, which she did. Now she has only two options—either to sign it or resign,” KC told the Post. “This is a clear case of violation of the constitution.”
KC said people deprived of citizenship or any Nepali citizen can register a writ petition at the Supreme Court demanding a mandamus order against the President for failing to fulfil her constitutional duty and not resigning even after that.
He, however, said the government cannot go to the court; it has to be a citizen or those directly affected by the bill.
At least two top leaders of the ruling coalition told the Post that they would take ‘appropriate’ measures. “The constitution does not allow the President to refuse to authenticate the bill,” said Upendra Yadav, chairperson of the Janata Samajbadi Party, a constituent of the ruling coalition. “If she does not act according to the constitution, the alliance will decide its further step at its meeting on Wednesday.”
According to Min Bahadur Bishwakarma, a leader of the Nepali Congress, the President’s refusal to authenticate the bill is an ‘unnatural conduct’ by the head of state, and a clear violation of the constitution.
“When the President, Vice President, or members of a constitutional body violate the constitution, they can be impeached. However, the option of impeachment is out of the question now as the Parliament’s tenure has just ended,” Bishwakarma told the Post.
“I personally believe that a case should be filed at the court if she does not authenticate the citizenship bill,” Bishwakarma said.
When the Post sought the opinion of UML leaders on the President’s intention to sit on the bill, some expressed their dissatisfaction at her action. They termed it ‘grossly inappropriate’ and the result of her lack of conviction in democratic values and principles.
“The President’s decision today can be seen as a reflection of how a section of our party has been blinded by nationalism,” the leader told the Post, requesting anonymity. The leader also said that certain moves by the President in recent times can be interpreted as an expression of her clear interest in joining active politics.
Another UML leader said the President is bound by the constitution, just like everyone else. Therefore, as per the constitution, she should authenticate the citizenship bill endorsed by both the houses of the federal parliament, said the UML leader on the condition of anonymity. “However, being the defender of the constitution she might have chosen not to verify the bill as the Parliament didn’t make any of the changes she suggested,” the UML leader told the Post.
Jitendra Sonal, a leader of the Loktantrik Samajbadi Party (LSP), said that his party will immediately launch street protests if the President has indeed refused to authenticate the citizenship bill.
“The bill forwarded by the present government is no different to the ordinance that was brought earlier by the KP Sharma Oli government,” Sonal told the Post.
President Bhandari had earlier authenticated the citizenship ordinance introduced by the Oli government. However, the ordinance was later challenged at the Supreme Court and was nullified.
“A legal complexity could arise over the citizenship certificates that have already been issued on the basis of birth if the controversial ordinance is later rejected by the federal parliament,” the constitutional bench had said while nullifying the ordinance.
In a bid to win the support of the Janata Samajbadi Party (which later split into Janata Samajbadi Party and Loktantrik Samajbadi party), Prime Minister Oli on May 23, 2021 had recommended the issuance of the Nepal Citizenship (First Amendment) Ordinance 2021. The ordinance followed Oli’s second dissolution of the House of Representatives. Earlier, on December 20, 2020, Oli had dissolved the Parliament for the first time.
According to Sonal, his party leaders including chair Mahantha Thakur had called on President Bhandari a few days ago and suggested that she authenticate the citizenship bill. “Not doing so would be against the rights of the Madeshi people,” Sonal recalls as saying.