President’s Exercise of Article 38 (1): A Constitutional Necessity

<br><P>Ankit Dhakal</P>

Nov. 23, 2012, 5:45 p.m. Published in Magazine Issue: Vol. : 06 No.-10 Nov. 09-2012 (Kartik 24, 2069)

To break the persisting political deadlock, the President called upon the political parties to recommend a proposal within the 29th of November to select a Prime Minister based on “political consensus” drawing authority from Article 38 (1) of the Interim Constitution of Nepal, 2007. The provision entitled Constitution of the Council of Ministers states, “The Prime Minister shall be selected by political consensus and the Council of Ministers shall be formed under the chairpersonship of the Prime Minister.”This has led to a controversy between those seeking to further extend the deadline for consensus building (confirming the use of Article 38.1) and those questioning the constitutional legitimacy of such an exercise by the President. For the nascent institution of the President replacing monarchy from Nepal, these questions are of the greatest importance to the stability of the entire system in days to come. It is therefore something worthy of legal analysis in the interest of upholding the Interim Constitution and the future of the very system. 




Two constitutional provisions need careful examination in this regard. First, one must look at the status and accompanying duty accorded to the President by the Interim Constitution of Nepal. According to Article 36 (A) of the Interim Constitution, the President shall be the Head of the State and in that capacity, his main duty shall be to protect and abide by the Constitution. Apart from granting the status of the Head of the State, the provision explicitly sets out the primary duty of the President as far as the constitution is concerned. As the vanguard of protecting and abiding the Interim Constitution, the President is under an obligation to check conformity with the Constitution.



Keeping this in mind, one must now consider the spirit of the Interim Constitution. As has been mentioned in the very preamble along with reiteration in provisions to follow, it is further clear that “political consensus” is central tospirit of the present Constitution. Now applying this to the specific situation of selecting the Prime Minister, as mentioned above, Article 38 (1) of the Interim Constitution emphasizes on political consensus as the first method of solving the question of choosing the Prime Minister. The President was therefore under a constitutional obligation to call upon the political parties to sort out their differences and work on political consensus in order to select the Prime Minister. It was with the intention of upholding and protecting the spirit of the Constitution emanating from a prime constitutional duty, that the President sought consensus on this issue from the political parties.



It must further be noted that the other method of electing the Prime Minister has been enshrined under Article 38 (2) of the Interim Constitution. According to it, the same shall take place through an election by majority of members present in the Parliament, if consensus is not possible. Without doubt, this provision (Article 38.2) has become redundant since the twin dissolution of the Legislature-Parliamentand the Constituent Assembly on the 28th of May, 2012.  In the absence of the Legislature-Parliament from the mentioned date, the question of electing a Prime Minister through the manner outline in Article 38 (2) is not a possibility.



Furthermore,the question of reviving the dead Parliament even for a limited period of time to elect a Prime Minister does not arise as the matter should have been settled before completely dissolving the said institution. It would be a grave constitutional blunder to consider the revival of the Legislature-Parliament on any grounds post the dissolution of the Constituent Assembly, as it will be ultra vires the Constitution. This is because Article 83 of the Interim Constitution dealing withtenure of the Legislature-Parliament states that, “Notwithstanding anything contained elsewhere in this Part, the Constituent Assembly shall also act as Legislature-Parliament as long as the Constituent Assembly remains in existence…” It is amply clear from the given provision that the existence of the Constituent Assembly is a vital precondition to the life of the Legislature- Parliament. Since the dissolution of the Constituent Assembly has already occurred, any move to revive the Legislature Parliament would be unconstitutional by virtue of Article 83 of the Interim Constitution.



It is only through the analysis of relevant constitutional provisions along with the spirit of the Constitution that, the President’s call for consensus among political parties to select the Prime Minister can be understood. It cannot be denied that the Interim Constitution is based on giving priority to consensus and this is the very spirit of the said Constitution. The current majoritarian government, which has been limited to the role of a care-taker ever since the dissolution of the Constituent Assembly, should grant primacy to the spirit of the Constitution i.e., make way for a consensus government capable of leading the nation to a fresh election. In this light, the President was merely carrying out a constitutional duty in seeking consensus among the political parties and hence, there is no ground for questioning the constitutional/ legal validity.



Advocate Dhakal, is currently pursuing M.A. in International Law and Human Rights at United Nations Mandated University for Peace- Costa Rica.

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