Nepal’s constitutionalism in crisis

Those who ought to have joined hands to give nascent constitutionalism a chance are today working to dismantle its spirit, argues ACHYUT WAGLE

The "federal republic" constitution of Nepal completed only seven years of its promulgation last week. This seventh constitution, in experimentation in as many decades, already reels under a grave existential crisis, thanks to a multitude of violations and lack of ownership of a number of its critical provisions by none other than the political forces who painstakingly drafted it taking seven long years and enforced it in 2015 amidst several adversities.

President Bidya Devi Bhandari's failure to authenticate the Citizenship Bill which, after repeated adoption by both houses of the federal Parliament, was resent to her in accordance with Article 113 Clause 4 of the Constitution is at the heart of the current constitutional debate. Clause 5 of the same article states, "A Bill shall become an Act after the president authenticates it." Apparently, the constitution has not conceived the possibility of the president not authenticating it. This indeed also appears as a serious fault line in the related constitutional provision. For example, had this provision instead stated that upon resubmission of the same bill after re-ratification by both houses, it shall automatically become law even if the president fails to authenticate it, there would be no ambiguity.

In the absence of such clarity, not only has the very future of this crucial Bill become uncertain, but it nullifies a very critical constitutional arrangement by the deemed protector of the constitution - the president. The cardinal question in the episode is not about the merit of the bill, but whether a ceremonial president can use her discretion beyond the explicitly articulated constitutional process.