The caretakers

JUL 13 -

Nepal’s tryst with this protracted political stalemate is bound to continue for some time. But because of the impasse at the turn of the new fiscal year, the nation is yet again being held hostage by the budgetary procedures. The Supreme Court (SC) has already meddled in the process, and soon the President will also come into the fray. Attached to the issue of unveiling the budget for the new fiscal year is a larger question involving the powers of “caretaker” executive head PM Baburam Bhattarai’s vis-à-vis the “ceremonial” head of the state Ram Baran Yadav.

Supreme Court’s order

The extent of the judiciary’s involvement in recent times in the executive and lawmaking process would be a different matter of study altogether. But an increasing number of writ petitions filed in the SC in the pretext of public interest litigations (PIL) are definitely allowing the SC to become more assertive. In one such PIL move to force the government not to adopt the budget for the new fiscal year without political consensus, the SC—contrary to its recent trend—has rejected the plea of interim order requested by the petitioners. Although the petitioners did not have a strong prima facie case, either, the SC took an escapist route by quoting Article 96A of the Interim Constitution (IC).

Article 96A contemplates a situation of existence of the parliament and—especially under Article 96A(2)—outlines that spending for the next fiscal year included in the budget documents should not exceed one-third of the annual estimates of the current fiscal year, if a sitting parliament precludes the presentation of the budget due to some special situation. In the past, when finance ministers Ram Sharan Mahat and Surendra Pandey for fiscal years 2065/66 and 2067/68, respectively, could not present the budget documents due to some adverse situations in the parliament (in session), a one-third expenditure budget was unveiled. However, in the current political scenario, where the parliament stands dissolved, these past precedents and the SC’s order are merely obiter and, therefore, not binding.

Government’s caretaker status

When it comes to his caretaker status, PM Baburam Bhattarai is a reluctant acknowledger. Constitutionally speaking, the expression “caretaker” finds no mention in the IC. However, PM Bhattarai’s cabinet has assumed a caretaker role because of two reasons: constitutional provisions and Westminsterial conventions. In accordance with the provisions of Article 39(7) read together with Article 39(9), the President has rendered PM Bhattarai a “caretaker” because he “ceases to be a member of the legislature-parliament” due to the dissolution of the Constituent Assembly. Additionally, following the practice of established parliamentary system following the Westminster model, any government that dissolves a parliament and takes an election call is deemed a caretaker. Hence, there should be no doubt that PM Bhattarai’s government should function in a caretaker capacity. And while functioning in a caretaker capacity, the underlying princi ple governing a caretaker cabinet—besides decisions on routine day-to-day matters—should be to refrain from making policy decisions having political and economic repercussions. Adoption of a budget, being one of them, can give electoral advantage to the incumbent caretaker government.

The President’s role

It is a testing time for the President and within the constitutional limits he will have to take initiatives to ensure the transition into the new fiscal year is smooth. The institution of the President was introduced in the IC by the fourth amendment. And, because of Nepal’s recent history of usurpation of executive powers by the head of state, the powers of the President in the IC were significantly reduced, and the role, accordingly, is largely ceremonial. Most importantly, the executive power is vested only in the council of ministers and not coupled with the President. President Ram Bara Yadav has also performed his duty fittingly by not overstepping the limits of his office until now.

But in two scenarios the role of the President in governance and lawmaking can be enlarged. First, it is a difficult proposition to argue that the President is bound to accept all the recommendations of a caretaker cabinet. Hence, the President can thwart the recommendations of the caretaker cabinet if it entails a significant exercise of powers that have not received adequate consent of the opposition. Secondly, in lawmaking through ordinance, the President’s power in the constitution is considerably greater, especially if the incumbent government is a caretaker. Article 88 of the constitution dealing with Presidential ordinances uses two terms in the provision which is of much relevance: the President first has to be “satisfied” that an exigency exists for promulgating an ordinance, and only thereafter he “may” issue it. Thus, this provision on part of the President’s action is only directory in nature and not mandatory. The President ca n accordingly refuse to pass the ordinance—whether it may be a budget ordinance—if there is a lack of political consensus on the matter. So PM Bhattarai, please be aware!  

the3rdbranch@gmail.com


Source: http://www.ekantipur.com/2012/07/13/oped/the-caretakers/357037/