SC to settle bill row

It has been three months since Ram Chandra Paudel was elected the country’s head of state. In this period, he has tried to build a distinct image than of his predecessors.  Soon after his election, he won plaudits from the people and media for breaking away with the tradition of “royal carcade” during his travels. But then criticisms followed. The first one came with his decision to visit India for treatment. President Poudel was taken to task for spending taxpayers' money. After intense criticism, he later announced to foot his medical expenses on his own. But it is the latest controversy that has put President Poudel on the spot, and many have started to claim that he is no different from his predecessors, Dr Ram Baran Yadav and Bidya Devi Bhandari, whose presidential legacies were full of controversies.

President Paudel’s decision to authenticate the divisive Citizenship Amendment Act right before Prime Minister Pushpa Kamal Dahal’s official India visit has been stayed by the Supreme Court. Meanwhile, opposition parties have obstructed the Parliament in protest of  Paudel’s move, while some legal eagles say the President’s decision to endorse the old bill violates the constitutional provisions.

It was the same bill that was forwarded by the previous government and Parliament to the Office of the President during Bhandari’s tenure. However, former president Bhandari had refused to endorse the bill, expressing reservations over some of its provisions. And when the former government led by Sher Bahadur Deuba of the Nepali Congress forwarded the same bill to the Office of the President for the second time, Bhandari never got around to authenticating the bill, as per her constitutional duty, because the country went to the national elections in November 2022, and soon her term expired. President Paudel has courted controversy because there are no clear constitutional provisions on whether the new president can stamp the bill rejected by the previous president. Initially, Prime Minister Dahal had verbally asked President Paudel to authenticate the bill, but the latter refused to do so, saying the government should provide him a solid basis to endorse the bill. Soon after becoming president in March, Paudel had also consulted with some constitutional experts on the same matter, but their opinions were divided. Later, Prime Minister Dahal along with two former prime ministers Deuba and Madhav Kumar Nepal, and the law minister visited the president to put pressure on him to endorse ‘the controversial bill.’ Again, President Paudel asked the government for a legal basis that would allow him to authenticate the bill. The government then worked out a plan of tendering a formal request to the Office of the President for the endorsement of the bill. It was on the basis of this document, President Paudel signed the bill. Some constitutional experts say the bill is technically dead after the dissolution of the previous parliament and President Paudel cannot revive the bill that was in effect tossed away by the former president. But the Office of the President does not subscribe to this argument. Kiran Pokhrel, president’s press advisor, says President Paudel has not breached the constitution.  “The new President has corrected the mistakes committed by former President Bhandari,” he claims. “By endorsing the bill, he has upheld the supremacy of Parliament and the constitution.” Another senior advisor to President Paudel also dismissed the argument that the new president cannot endorse the bill, as it was passed by the previous House of Representatives (HoR).  “The constitution has not envisioned a legislative gap because the National Assembly is always there.  There is a provision of periodic election of the HoR or it could be dissolved but the upper House always remains there.” As far as the content of the bill is concerned, he says, it is the jurisdiction of political parties and Parliament to finalize the contents of any bill. Pokhrel says there has been a systematic campaign to create an illusion by some forces and people will ultimately know the truth. The timing of the authentication of the bill has also drawn suspicion. President Paudel authenticated the bill just before Prime Minister Dahal embarked on his official India visit on May 31. This was brought up by Rastriya Prajatantra Party Chairman Rajendra Lingden in Parliament on Sunday. “We are of the view that the issues related to citizenship should be addressed without any delay but the process adopted and timing of the endorsement is objectionable,” he told the Parliament. While Prime Minister Dahal too has acknowledged that the timing of the bill’s endorsement was inopportune, it is noteworthy that he had called on President Paudel just before his flight to New Delhi. Lingden has accused the major political parties of using the Office of the President for political benefits. Former Supreme Court justice Balaram KC says the experiences of other parliamentary democracies show that any bills that have been endorsed by both houses of parliament and sent to the president’s office can remain active until it is endorsed. “The new President should not return the bill to the House on the ground that the new parliament has come through the elections,” says KC “The bill is the property of the president’s office.” According to him, the Indian court has delivered a verdict that bills will turn passive if it is not endorsed by either upper or lower house, but the bill already forwarded to the president’s office remains active. Senior advocates Surendra Bhandari, Bal Krishna Neupane and Ishwari Bhandari in their petition have argued that the President encroached on the constitution by endorsing the bill passed by the previous parliament. They are of the view that the executive does not have exclusive power to forward the bill to the President and get it endorsed. The petitioners have argued that the due process has not been followed while endorsing the bill, and that it is against the principle of separation of powers. The ruling as well as Madhes-based parties have welcomed the President’s move, but the opposition parties such as CPN-UML, Rastriya Swatantra Party and Rastriya Prajatantra Party have protested it. UML leader Yogesh Bhattarai has said the President is also a part of Parliament and he must therefore keep the dignity of the Parliament.  But, political analyst Vijaya Kanta Karna disagrees. “Had the President not endorsed the bill, it could have set a precedent that presidents are not obliged to authenticate the bill forwarded by parliament and government, and other bills in the future could face the same fate.” There are also arguments that the Cabinet cannot recommend the President to endorse the bill, it is the jurisdiction of Parliament to forward the bill to the Office of the President for authentication. Legal experts who hold such views say that the Cabinet can only forward ordinances to the President, not bills. The new issue has divided the political parties and legal fraternity and the case has reached the court. There are already five cases filed against former President Bhandari’s refusal to authenticate the bill pending in the Supreme Court. Earlier, KP Sharma Oli-led in May 2021, had introduced an ordinance on the same issue but the apex court directed the government not to implement the ordinance. Now, it is up to the Supreme Court to clear current constitutional ambiguities interpreting the constitutional provisions related to bills. The passage of the bill has paved the way for around 400,000 people to apply for citizenship. The Citizenship Act 2006 allowed everyone born in Nepal before 1990 to acquire citizenship by birth, but their children who now are eligible to get citizenship are deprived of it. The amended provision in the bill paves the way for such people who have not been able to apply for Nepali citizenship.