The constitution has envisioned the President as the protector of the constitution. The source of this institution is juridical - developed and existing because of a statute. The institution of President is supreme, absolute and indivisible because the constitution has provided it to be so
When President Bidhya Devi Bhandari sent the bill to amend the Citizenship Act back to parliament for review, the political circle was discombobulated: mixed reactions and eclectic feelings. The discourse surrounding the entire issue was more political than juridical. Political parties made different reactions: Congress leaders were irked; UML leaders saw it as a chance to make a political gain; the Maoist chose to act mum. In the multiplicity set up, we find multitude political motives and interest. Aligning with these motives and interest, a Congress leader commented: "we know that the president's actions are inspired by her political leanings".
Similarly, several other leaders have bombarded with several allegations.
This is not the first time that the President has been under fire. The president has been highly controversial for her partisan role, causing dispute and scandals during her entire tenure.
Maligned and calumniating, she is viewed as a partisan and a factional leader than a president.
Against this backdrop, a question arises: Is the president's actions another political shenanigan or normal constitutional process? This issue has been reduced to political bickering and personal commentary outlining the president's previous actions, while the issue should be debated juristically.
The truth is that the president has acted constitutionally, which is perfectly outlined in the constitution. Then, why has the media and the political actors embellished and magnified this issue to this extent? Perhaps, the epistemic nature of what becomes an issue, what does not become one in Nepal can be its own very discourse. But, with regards to the president's actions, the constitution has spoken meticulously and precisely.
According to the constitution, Article 113 (3) has given the president the right to extend his/her opinion and send a bill for reconsideration to the House. The President sent her opinion and asked the parliament for reconsideration as constitutional provision.
The president, in her letter, has raised 15 issues: ranging from constitutionalism to her analysis of geographical intricacies. If the bill truly contradict the constitution, the President's decision to send the bill back to the parliament for reconsideration is apppropriate. Similarly, the President is not only the 'head of state' but also 'the protector of the constitution'. So, if some bill contradicts the constitutional structure, it is suited for the President to play that role. But, we must also understand that the ambiguities and vagueness of this role have caused countless constitutional crises. One such instance is the Rukmangad Katuwal case, where the President's action was highly controversial. Hence, jurisprudential analysis of the Presidential institution is necessary.
Constitutionally the President's actions are pristine. The constitution does provide the President the right to resend a bill back to its place of origin for reconsideration. While providing the President a position as the protector of the constitution and promoter of national unity, it provides with certain purposes. Purposes have functions with certain limits. Demarcating this limitation is necessary that should be done jurisprudentially and analytically.
Jurisprudentially, there is a division between the government and the sovereignty. These two political entities carry two diverse wills. The government, in a democracy, often is majoritarian rule. Meaning that it functions with the majority will. However, as like how JS Mill stated in his book On Liberty: "the problem of liberty was no longer the classical issue of controlling tyrannical rulers to safeguard a sphere of individual freedom: it was to overcome oppression by the majority". The majority will might infringe on the liberties of the minority which are fundamentally guaranteed by the constitution.
The President, as the protector of the constitution is the protector of minority rights as well. The Parliament holds power because it is the representation of people and derives its power from their sovereignty. Then, from where does the President get its authority? The constitution has envisioned the President as the protector of the constitution.
The source of this institution is juridical - developed and existing because of a statute. The institution of President is supreme, absolute, indivisible, and perpetual because the constitution has provided it to be so. The President is the head of state, and gets its authority from the existence of the state itself.
The two functions of the President as 'head of the state' and 'promoter of national unity' is more centered towards fulfiling national will than the general will. Is the national will the general will? Not always.
Like how a democratic government loses its authority when it loses the majority will: even during the parliament dissolution case, it was argued that when the government is in minority it loses its authority. Similarly, a president loses its authority the moment the constitution is annulled or the state disappears.
Hence, like how the government tries fulfiling the majority will, the President fulfills the state's will by promoting national unity and safeguarding the constitution.
Then to what extent can the President go towards fulfiling his/her duties? However, the problem arises when the state will is confused with the general will. The President's letter was fully concerned with protecting the nation and preserving the constitution.
The role of president is purely ceremonial and its role purely juridical like that of a paternalist advisor that is a guardian and a protector. A guardian can advise and suggest but not mandate or dictate. When a president elevates herself from the advisory and suggestive role to that of dictatorial role, tyranny eschews.
In this case, the President merely gave the parliament an opportunity to 'reconsider' the bill, she did not refuse to authenticate the bill. This issue is not 'grave constitutional issue,' but a normal constitutional process which has been exaggerated.
A version of this article appears in the print on September 2, 2022 of The Himalayan Times.