The action taken by the president to reinstate the Chief of the Army Staff(CoAS) dismissed by the government has drawn both admiration and condemnation from the people of different walks of life The cabinet led by PM Pushpa Kamal Dahal “Prachanda”, notwithstanding the opposition and the walkout from the cabinet by the ministers representing coalition partners, had ultimately dismissed CoAS Rookmangud Katawal a few day ago. The president, on the request from eighteen political parties represented in the Constituent Assembly (CA), and the appeal from the CoAS , has acted as the Custodian of the interim constitution and the Supreme Commander of the Nepal Army to stay the dismissal order of the government and advised the government to act as per the provisions of the constitution and the consensus among the parties in the CA. In response, the PM resigned from his post claiming that the presidential move was unconstitutional and illegal, as he had established a parallel structure of the governance in the infant republic.

The critics of the presidential order take his step as unconstitutional. They consider it violates the constitution, since the president has no executive power to override the government decision. They hold that the post of president is only ceremonial, whereas, others maintain that the presidential post is constitutional. This issue is not a new one as it has been deliberated upon in the past as well. But this has been brought to prominence due to his last order. Since this issue has been referred to the Supreme Court, it will finally be decided by the apex court.. The interim constitution has accepted him as the “custodian’ of the constitution, and the specific function is no where found in any democratic or republican constitution. The word “custodian” entails three positions of the president. First, he is other than or above the constitution in specific conditions (whose custodian he has been made). Secondly, he can act to protect the constitution if it is made ineffective or paralysed. Lastly, in special circumstances, he can adopt such means as well that may not be commonly permissible to protect the constitution. To some, by adding this power to the president, we have committed the same mistake which we had committed by empowering the monarch with the residual power vide Art, 127 in the 1990 constitution of Nepal. The residual power should have rested with the parliament, which is a sovereign body. Similarly, the people or the elected house could have been made the custodian of the interim constitution, not one individual, the president. It appears that by making the president custodian of the constitution, we have given extra-constitutional power to him unwittingly, or there would have been some personality in the minds of the framers to give such power to an individual at the time of abnormal situations that may arise in course of time.

Actually, the president is president; he is neither ceremonial nor constitutional. There cannot be a constitutional president like a constitutional monarch.

A monarch is made constitutional by bringing

him under a constitution by limiting his powers, whereas, a president is always constitutional in any democratic constitution like other constitutional functionaries. For commenting upon the presidential order we have to view the predicaments in which the president was placed.

There were advices from the 18 parties (majority of the parties represented in the CA) for taking prompt action in the prevailing circumstances and an appeal from the CoAS to seek justice from the Supreme Commander, the president. There were two alternatives before him. First, he could have been passive even if the constitution was made ineffective by not channelizing the orders of dismissal and appointment to the highest post of the Nepal Army whose Supreme commander he was. Interestingly, he had been advising the PM in their meetings earlier to take action only in accordance with the consensus among the parties. The second alternative before him was what he adopted by writing a letter to the CoAS, under copy to the PM, to continue in his post as

usual till a consensual decision is not taken by the cabinet on this score for reaching the logical end of the peace process.

The resignation has nearly paralysed the peace process that was moving very slowly. Perhaps, the formation of a new government may not pose any serious problem, but the smooth running of the new government will definitely be a Herculean task without the active participation of the Unified CPN-Maoist. The prime task of writing the constitution will never be accomplished without the cooperation of the Maoists. Although the outgoing PM has assured the nation of his firm commitment to peace, democracy, civilian supremacy and national independence, it may remain in words only as observers feel that the continuity of the PM would have been a better decision for the peace process, especially when the future of 19,000 Maoist combatants in the cantonments is at stake.

Prof. Mishra is former election commissioner