Lawyers divided over prez powers


The draft constitution has given some new powers to the President and has proposed to take away some that the President enjoys under the Interim Constitution.

As per the Interim Constitution, the President appoints army chief on the recommendation of Council of Ministers but the draft constitution states that President shall appoint the army chief as provided by law.  President Ram Baran Yadav’s Legal Adviser Lalit Bahadur Basnet, who is also a constitutional lawyer, said the President had no discretion under the draft constitution to issue an ordinance as was the case under the Interim Constitution.

“The Interim Constitution states that the President, if satisfied, shall okay an ordinance,” he said, adding, “The Head of State needs to be given some powers in special situations in order to check the monopoly of the prime minister.” Basnet said if the President was not given some powers, the ruling party could misuse powers during elections.

“Khil Raj Regmi-led government wanted to mobilise army without specifying the ToR, the President okayed the plan only after being satisfied with the ToR,” Basnet said and added that the President should protect the constitution and abide by it.

When a President, he argued, is elected and impeached by the Parliament, s/he should have certain powers by virtue of his status. “British Head of State neither takes oath of office and secrecy nor can she be impeached. We should, therefore, not compare our Head of State with that of the UK,” he argued.

Advocate Chandra Kanta Gyawali, however, said the draft constitution proposed to have a constitutional President but the contents of the constitution gave more powers to the President which could create tussle between the President and the PM.

Unlike the Interim Constitution, the draft constitution gives powers to the President to declare an emergency and dissolve the House of Representatives in case a new government fails to show majority in the House, he added.

“Although Article 70 states that the President shall act on the recommendation of the Council of Ministers unless stated otherwise, the rules of interpretation might not prevent the President from using his powers where the clause ‘on the recommendation of the Council of Ministers’ is not mentioned in a particular article,” Gyawali argued.

Gyawali said sub-clauses of Article 79 of the draft constitution stated that the President shall appoint the prime minister, which was against the concept of parliamentary form of governance.

Advocate Dinesh Tripathi, however, said Article 79 (1f) of the draft, which stated that the President could grant amnesty even in serious crimes, was against legal norms and principles. Tripathi said the sub-clause of Article 66 which stipulated that the President could be elected through lottery system if the two candidates score equal votes would undermine the prestige of the President and should be removed from the draft. “Article 65 (4) states that the President shall be the symbol of national unity. How can a person who is elected on the basis of his loyalty to a particular party can become a symbol of national unity? Such phrase should be removed,” Tripathi added.