Soft Anarchism

Regarding the tenure of the President, Article 36 C leaves no doubt that ‘the President shall continue in office until the new Constitution is promulgated by the Constituent Assembly’. The Supreme Court in a case further clarified that the issue of t

Aug. 29, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -6 August. 29- 2014 (Bhadra 13, 2071)

Anarchism of any typedoes not pay anyone, anywhere. Constitutional anarchism, which undermines the supremacy of the rule of law, is riskier than political anarchism although it may be soft in nature and less unruly. The issue of political endorsement of the President and Vice-President by the legislature, repeatedly raised by some senior political leaders, apparently  based on the so called private understanding reached betweenthe two leading political parties-Nepali Congress and CPN(UML)-before forming a coalition government, has sowed a seed of soft politico-constitutional anarchism in the post-CA election environment. Hence, the legality (or constitutionality) of presidential tenure needs to be seriously examined for clarity.

 In a democratic society where the rule of law prevails, clear constitutional provisions and their judicial interpretations are respected by all, even if politically it may appear otherwise. But this has not happened in a case related to the tenure of the President and Vice-President. Political motivations and perhaps inadequate legal informationof some parties have overshadowed the significance of Articles 36 A, 36 C, 36 E, 36 G and 36 H of the Interiim Constitution thereupon undermining the dignity of the elected Head of State which reflects the achievement of 2005/2006 political movement as a sacred symbol of ‘republicanism’.

Regarding the tenure of the President, Article 36 C leaves no doubt that ‘the President shall continue in office until the new Constitution is promulgated by the Constituent Assembly’. The Supreme Court in a case further clarified that the issue of tenure as it is clearly stated cannot be debated, and unless appropriate amendments are not made, this issue can no more be questioned either. A few noted party leaders nevertheless continue to raise the voice in public against these provisions and the Supreme Court order, however, without tabling any motion for constitutional amendment. Since the President has been elected by the Constituent Assembly, it is only the two third of CA Members who can remove him through an impeachment motion.

The legislative component do not even have a constitutional mandate to initiate a resolution against President.Neither CA component is empowered to table an endorsement resolution.  The political myth of endorsement by newly elected CA as derived by some was rejected by the CA and the legislature through the new rules of CA and parliamentary procedures. Following which the President has already delivered coalition government’s policy statement by appearing in the House in person.

What does then the unruly utterances of some politicians about Presidential tenure mean in constitutional sense? It’s none other than a soft political anarchism which has no constitutional basis. At a time when the nation is focussing on the constitution making process, the seven point political deal reached prior to the formation of Government can no more be respected by the same parties who signed it, as theyare in Government now and their duty is to obey and respect the Constitution. They cannot even talk about it in violation of the written words of the Constitution that the Supreme Court has explicitly interpreted. Constitutional anarchism of such nature is against the universal norms of constitutionalism and the rule of law.

  The coalition partners in Government must not forget that all provisions and the institutions under the Interim Constitution are interim, except the institution of the Head of State that never dies in a sovereign state. As is the international constitutional practice and as we have followed all through in our previous Constitutions, including  the present Interim Constitution, it is the transitional clauses of the new Constitution to be adopted by the CA and promulgated by the President that will provide for the endorsement and continuity of the existing institutions and authorities. Perhaps, political leadershave not read Article 82 of Interim Constitution. According to this provision, if thenew Constitution is promulgated and commenced by 22 January 2015, the work of the CA will come to an end. And rest of the matters will have to be provided for by the new Constitution. Hence, the political understanding of any kind, as done in the seven point deal of NC and CPN (UML) will have no constitutional standing. Hence, and any utterances of such political nature is merely a soft constitutional anarchism.

 

(Dr.Dhungel is a senior advocate and professor of law)


 

surya dhungel.jpg

Dr. Surya Dhungel

Dr. Professor Dhungel is Constitutional Expert and Senior Advocate

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