Nepali Times
From The Nepali Press
Who advised His Majesty?

"Who gave His Majesty this advice?" is the question being asked everywhere. The question concerns the Citizens Bill, which the lower house of parliament passed almost 8 months ago. Then, four months ago, the speaker of the Lower House certified that this Act was in accordance with the Constitution and the bill was sent to the king for his assent after which it would become a law of the land. His Majesty, it seems, had doubts "whether the Bill sent to him for his assent was in accordance with the Constitution or not". He has now asked the Supreme Court for its suggestions and recommendations.

The Supreme Court, on receiving the letter from the king, got working and Chief Justice Keshab Prasad Upadhaya has fixed 14 March as the date when hearings will commence. The chief justice has proclaimed that a total of six members, in two groups of three, will help in carrying out discussions and has requested people to get involved in this work immediately.

The apex court cannot go against the Constitution and whatever recommendations it makes to the king will in no way affect the said bill or in any way affect the position and stand taken by the king. Act 88, Clause 5 of the Constitution states: "If His Majesty wants the opinion or recommendations, concerning some act, article or clause of the constitution or some difficult legal matter, then the Supreme Court if asked can provide answers, opinions or recommendations to His Majesty."

It is under this very clause that the king has been seeking the opinion of the Supreme Court time and again. This is where constitutional experts differ. They say that once a bill has been passed by parliament, the king cannot ask the Supreme Court for its opinion. If the king is in disagreement with a particular bill passed by parliament and sent to him for his assent, he can return the bill within a month of receiving it and ask parliament to take a second look at it. Since this is a Finance Bill, the king cannot do that.

The Court can only give its opinion on the bill, it cannot give a decision. The Constitution does not give the king the right to change a bill. A Bill becomes an Act only after the king has signed it and then those parts that contradict the Constitution are deleted. Therefore, if the Court now gives the verdict that the citizenship bill contradicts the constitution, what is His Majesty going to do? Will he sign it after getting such an opinion? He does not have the right to reject it and neither can he ignore it. This will put more pressure on him.

At this point, some people point to Act 55 Clause 3 of the Constitution. This clause states: "His Majesty can send to both or any one house of parliament his message. As soon as that particular house receives His Majesty's message, it shall immediately get together and give its opinion to His Majesty on the issue His Majesty has referred to in his message." Constitutional experts differ on this issue as well. They state that this clause cannot be used when such issues (like the Citizenship Bill) are being referred to. This clause can only be used when parliament or any one of the two houses of parliament is not discussing an important issue and His Majesty thinks that the house should take it up.

Parliament has not neglected the bill in question and it has been discussed at great length. It has been passed by the Lower House, discussed by the Upper House and sent back. It was then discussed again in the Lower House and then only had it been sent to His Majesty for his signature. Therefore Act 54 Clause 3 cannot be used in this case and using it will only contradict the letter and spirit of the Constitution.

(11 JAN 2013 - 17 JAN 2013)