Nepal President under scrutiny for failing to abide by her constitutional dutiesBidya Devi Bhandari faces questions over her complicity with Prime Minister KP Sharma Oli in dissolving the House and declaring elections, a move that many say unconstitutional.
“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).
But the Supreme Court on March 7 scrapped the Nepal Communist Party (NCP) and revived UML and the Maoist Centre. Two months later, Oli on May 2 said he would seek a trust vote in the House. He failed the confidence motion in the House on May 10.
However, he was reappointed prime minister on May 13 under Article 76 (3) after opposition parties failed to form a new government under Article 76 (2).
Ever since the House was elected in 2017, all articles related to government formation have been exhausted, and the last provision was Article 76 (5).
In a parliamentary system, it’s the House that elects the prime minister–or provides the platform to form a government.
But, according to experts, the President has robbed the Parliament of its prerogative by functioning as the judge, jury and executioner, without letting the people’s elected representatives decide whether they want to elect a new prime minister and form a new government.
Hours before the notice on House dissolution, the Office of the President at 11:38pm on Friday said that the claims made both by Oli and Deuba were insufficient.
Experts say if the claims were insufficient, the President should have given more time to come up with fresh claims, as until a new prime minister is appointed, Article 76 (5) is not fulfilled.
“Under Article 76 (5), every individual lawmaker is eligible to make a claim to form a new government. If Bhandari had any doubts over the signatures presented by the opposition alliance, she should have taken initiatives to verify them,” said Chandra Kant Gyawali, a senior advocate with specialisation on constitutional law. “She does not have the constitutional authority to reject the claim. She should have asked to make a fresh claim.”
As the protector of the constitution, according to experts, the President should abide by the constitution, not make conjectures.
The statement from the Office of the President said that both claims by Oli and Deuba were insufficient also because the CPN-UML, Oli’s party, said that 26 of its lawmakers, who supported Deuba, could be relieved of their membership of the House of Representatives.
But if they were to be relieved, it was the House that should have exercised that, not Bhandari, experts say.
According to them, Bhandari’s decision was flawed for three reasons: First, she cannot take decisions based on presumptions, second, it’s none of her business to enter into party disputes which are decided either by the Election Commission or the Parliament Secretariat and lastly, the party’s whip is not applicable when a government formation is claimed under Article 76 (5).
Gyawali said the party whip would have been applicable when, say, Deuba was appointed prime minister, and he went for a trust vote.
Anyone appointed prime minister under Article 76 (5) must secure the vote of confidence in the House within 30 days from his/ her appointment as per Article 76 (6).
The UML, if it felt that its lawmakers had supported the opposition alliance, could have issued a whip not to vote in favour of the motion when a vote of confidence was sought.
If a party deems action necessary against its lawmaker(s) for defying the party whip, it can do so as per Political Parties Act-2017 and even sack them as lawmakers.
“But until the position of lawmakers is intact, the President must count their signatures as legit,” said Gyawali. “Just because Oli reported that his party UML could initiate action, the President cannot reject the claim of the opposition alliance altogether.”
Bhandari’s role as the President has been questioned in the past also. Despite facing criticism, she, however, has not made any moves to mend her ways, and has continued to be an accomplice of Oli in all his actions.
As Bhandari received censure from various sections of society, Oli on Friday afternoon, hours before he made her a partner in his unconstitutional move, said that disrespect for the President is disrespect for the republican system.
“In a monarchy, there is a king, in a republic system, there is a President,” said Oli during a press conference. “The President is the symbol of republicanism and an attack on the dignity of the Office of the President is an attack on the republic system.”
Oli did not name names but he was referring to growing criticism thrown at the President.
Experts say it’s an irony that Oli was asking others not to attack the President but he is the one who has continuously used and abused the high office for his political gains.
“The Office of the President has become a puppet of the executive,” said Baral, the political science professor. “Bhandari and Oli have not just subverted the constitution but also have brought disgrace on the constitutional institutions.”