Nepal’s president Ram Chandra Paudel authenticated the citizenship bill on Wednesday. The bill was sent to Sheetal Niwas, the office of the president, twice for authentication following the endorsement of the document by both houses of Nepal’s federal parliament in 2022.
Bidya Devi Bhandari, who was the president at the time, refused to authenticate the bill, raising some concerns about some provisions.
First, President Bhandari on 14 August 2022 returned the Citizenship Act amendment bill to the House of Representatives for review. She had also sent a 15-point message including her concerns and suggestions for the bill.
The bill was again sent to her on 4 September 2022 after endorsement by both houses of parliament. She, however, refused to sign it within the stipulated deadline.
The new president Ram Chandra Paudel, however, did not continue the refusal of Sheetal Niwas to authenticate the bill. On Wednesday (31 May 2023), Paudel authenticated it.
‘Following the decision of the meeting of the Council of Ministers on 26 May 2022, the Office of the Prime Minister and Council of Ministers sent a letter (321/6974) for the authentication of the bill. The bill has been authenticated as per article 61 (2), (3), (4) and article 66 of the constitution and precedent set by Nepal’s Supreme Court,” reads the statement issued by the president’s office.
The statement has tried to set a tone that the president decided to authenticate the bill on the recommendation of the Council of Ministers and the president does not hold power to use personal conscience on such matters. The matter, however, is not out of controversy.
Nepal’s president avoided the established precedents of authenticating the bill after receiving a letter from the house speaker of the parliament. Instead, he approved the bill on the recommendation of the Council of Ministers. This equates to the process of approving the ordinance.
The decision of the cabinet itself has been facing constitutional and legal questions. If the president takes a decision on the recommendation of the Council of Ministers, there will be no difference between the ordinance and the bill. It will also raise the question on the relevance of the parliament.
Ramesh Badal, former Attorney General of Nepal, dubs the move as the ‘height of indecency’. There is no practice to authenticate any bill on the recommendation of the Council of Ministers. Our constitution does not have such a provision, he told Nepal Live Today.
On the other hand, Nepal’s Constitution has allocated the rights of sending bills to the president to speakers of the houses of parliament. That process was duly followed when the bill was sent to the president’s office last year. Even though the process was followed, President Bhandari had refused to authenticate it. The move was criticized as unconstitutional by constitutional experts.
This time, the president took the decision following the recommendation by the Council of Ministers, not from the parliament.
Thus, the constitutional legitimacy of the bill per se is under question. This was well reflected during a series of discussions by the president a few weeks back. The participants of the discussion clearly indicated issues and questions surrounding the bill. His decision to authenticate the bill without broader consultation is expected to court more controversies in the days ahead. President Paudel has added one controversy by authenticating the bill.
On the other hand, the president’s move is likely to be challenged in court. There is also a likelihood of this authentication being rendered null and void. Chandra Kanta Gywali, the senior advocate and expert on constitutional law, says that the court is the ultimate body to interpret whether the authentication is fair and just. “The bill cannot be stalled, nor rendered void. Given that it was not authenticated by the former president within a 15 days time frame, it is a matter of constitutional interpretation to decide the status of the bill,” he said. “Writ petition might be filed against the move. The Supreme Court is the ultimate interpreter. It might give its interpretation.”
The interpretation of the court notwithstanding, it is not good that the president’s move becomes a matter of debate in the court. The fact that the Supreme Court has time and again tested the decision of the president has raised the question of the sanctity of the institution itself.
[Related: Long read | Beyond the bill: What lies behind the controversy on Nepal’s citizenship legislation?]
The bill was authenticated a few hours before Prime Minister Pushpa Kamal Dahal embarked on a four-day official visit to India. The two events might be a matter of coincidence but it will be widely perceived, even established, that the bill was authenticated intentionally. It is an open secret that India has some concerns about the citizenship bill. Questions will be raised about Dahal, who at one time vowed never to bow down to India, bideshi prabhu [foreign force].
Ramesh Badal is of the opinion that the authentication of the bill is a gift by Prime Minister Dahal to India during his visit. Tikaram Bhattarai, a legal expert, wrote that the PM has obtained a ‘formal visa’ by getting the bill authenticated unconstitutionally before flying to India.
Authentication of the bill has raised many other questions as well. First, the office of the president may be an institution of perpetual existence but the House of Representatives is not. Every five years, new representatives are elected and the mandate changes. The representation of the HoR elected by the 2017 elections is different from that elected by the 2022 elections. The existing HoR might not find the bills passed by the preceding HoR relevant, which is why once the HoR changes the old bills under deliberations in the old HoR become void.
Like former president Bhandari disregarded the erstwhile parliament by rejecting the bill, current President Paudel has disregarded the current parliament. This is disregarding parliamentary proceedings, process, and the process of forming law. It is unfortunate that these questions are directed toward Paudel, who became the President after being involved in a long democratic movement.
President Paudel authenticated the bill in such a way as if the parliament had just forwarded it to the Office of the President for authentication. If the president was really concerned about the plights of those who have been deprived of citizenship rights, he could have advised the government to get the bill passed by the new parliament once again. He could have called an all-party meeting to discuss the matter or he could have taken consultations with legal experts. He did none. He instead gave life to the ‘lifeless bill’, which is why his move is going to be controversial.
Such moves keep the political parties and other stakeholders divided over the citizenship issue, which ought to be controversy-free. The whole nation might be a divided house. The issue may become a subject of hot debate in the streets as well as in the parliament.
There is no dispute about the fact that every Nepali citizen should get citizenship. But when the vital parliamentary processes are skipped, it keeps creating controversies for perpetuity.
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