SC limits prez to ceremonial role

KATHMANDU: In a first ever verdict related to the president’s action since the country was declared republic, the Supreme Court today categorically said the president as the Head of State neither has the constitutional privilege nor immunity under the interim constitution.

While issuing a verdict on President Dr Ram Baran Yadav’s May 2009 move to reinstate the then Chief of the Army Staff Rookmangud Katawal, a full bench of Justices Top Bahadur Magar, Prem Sharma and Mohan Prakash Sitaula stated that the Head of the State does not enjoy privileges and immunity in his action — like the king during the earlier regime used to. The bench observed that nor could he ‘justify’ the move citing any principle, such as Doctrine of Necessity.

President Dr Yadav had reinstated Katawal a day after the then government led by UCPN-M Chairman Pushpa Kamal Dahal sacked the army chief and appointed second-in-command Kul Bahadur Khadka as CoAS.

Today’s precedent-setting verdict bars the president from taking any decision (or action) on his own. Stating that the president’s authority is limited to recommendations by the authorities—the Council of Ministers, the Constitutional Council, the prime minister and the Speaker—the bench stated ‘the recommending authority should be answerable for any

kind of decision taken by the Head of the State’.

As the constitution does not provide any privilege or immunity to the Head of the State — the way the 1990 Constitution did to the king — any action of the the president can be tested by and at apex court, the judgement text read.

Advocates Sri Krishna Subedi and Ram Krishna Kafle on behalf of INHURED-International had filed a public interest litigation seeking the apex court intervention into the president’s move.

The bench, however, quashed the writ petition challenging the president’s move, as Katawal and his then successor both have retired and the government has already amended the Army Act.

“Since the lacunae in the Army Act have already been removed, making the Act compatible with the fourth amendment of the interim constitution, and the provisions for the president have been inserted, the situation has significantly changed, rendering the apex court intervention meaningless. Moreover, the government has already rectified the decision of sacking the then CoAS on June 18, 2009. So, an apex court order to nullify the letter of the president (of overriding the govt decision) is not required,” the bench observed.

What he can do on recommendation

• Call and prorogue parliament session

• Address the parliament

• Appoint PM, CJ, parliament’s general secy, CoAS, ambassadors

• Authenticate Bills

• Issue ordinances

• Appoint chief justice

• Appoint constitutional heads and members

• Control, mobilise army

• Grant pardon and commute or remit sentence

• Remove constitutional anomalies

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