Only observance of the Charter can protect it

The new Constitution, adopted by the Constituent Assembly in September 2015, has moved ahead with the completion of presidential and vice-presidential elections on March 9 and March 17, 2023, respectively. The elections for the Speaker and Deputy Speaker were held earlier whereas provincial and local level elections were completed much earlier. The constitution has defined the functions of the President in two specific terms—protection and observance (of the constitution). Naturally, politicians and constitutional experts consider protection and observance of the constitution as two distinct functions of the presidency. If the president is regarded as the protector of the charter, it places the position of the president above the constitution. No doubt, these two terms have two different connotations. However, to keep in view the spirit of the republican constitution these two functions have to be taken together, for it envisages that president is not above the constitution, as it is a post created by the charter itself to complete the defined course legislation and other formal functions. Hence the prime duty of the president is to observe the charter. If the president refuses to abide by the statute, there is no superior constitutional authority to compel him or her to follow it. The refusal makes the statute dysfunctional and places the presidency above it, providing the presidency the liberty to ignore the advice of the cabinet. Sadly, it has happened in the past. The outgoing president did not nominate the persons recommended by the cabinet to the Upper House. The Bills were not certified/signed by her to make them laws. The government remained a silent spectator in all this. Significantly, the helplessness of the government seems to be the outcome of the lack of vision of the framers of the charter. Consciously or unconsciously, they made presidential and vice-presidential posts insulated indirectly from the process of impeachment by not providing the provision for the immediate suspension of these posts on the registration of the impeachment motion similar to all other posts of constitutional bodies. In the past, two chief justices were suspended immediately after impeachment motions against them were registered in the House of Representatives.

This provision could have been made equally applicable to these two supreme posts. The process of suspension is the first step for taking action against those officials charged with serious allegations to conduct a fair investigation. Significantly, this provision works as a deterrent for offenders and also functions like undue pressure over the fair and impartial functioning of constitutional bodies to toe the line of the political parties in power that can register the motion of impeachment.

Perhaps, the framers of the statute did not realize that the posts of president and vice-president are the creations of constitutional provisions. These posts cannot be claimed on the basis of any divine or hereditary right. Logically, when these posts are liable to be impeached, the further process of suspension would have been provided in the constitution. Its non-existence can be interpreted that to keep these posts above the process of immediate suspension makes these posts unimpeachable, as without getting suspended it is difficult to pass the motion of impeachment when the persons concerned are in the office. It seems that these posts were insulated practically from impeachment as the framers might have thought to get these highest posts reserved for themselves by holding it their exclusive right to have them, which is evident from the recent elections for these posts. Interestingly, though the president is only a titular head, the post has been made so glorious that it is difficult for a lay person to distinguish between the previous monarchical and the present republican era. The security umbrella given to this post causes a lot of inconvenience to the people. However, the new president rightly wants to modify the traditional security cover. It is no secret that the post has the least security threat, as no real power is vested in it, as the president has to act as per the advice of the government. It is good that the president has repeatedly assured the people that he will protect and follow the charter. However, he could have noted that the charter wants him to follow it to protect it. Of course, he has to be an  ‘emergency light’, as claimed by an India president, to act maturely when situation demands and not in a partisan way, as has been witnessed recently. Our infantile republic has just started crawling. He must be careful till it walks confidently so that it does not fall into a ditch of political chaos.