National 3 (Spotlight Weekly)

Where Lies The Executive Power?

Constitutionally, the executive power lies with His Majesty and cabinet but in reality it appears otherwise

By KESHAB POUDEL

If frequent directives issued by the Commission for Investigation of Abuse of Authority (CIAA) to the cabinet are any indication, they show that the government, which is constitutionally sole source of power, does not enjoy the real power.

Recently, the commission issued a stern directive to the government to strictly abide by its decisions while awarding contracts. "This directive is one example how the CIAA is acting against the spirit of accountable parliamentary form of government. The commission, has in the recent past, issued a number of such directives though it has only an advisory role in checking corruption," said a lawyer.

CIAA : Above executive ?

In many cases, the CIAA also goes beyond its real authority. According to the CIAA Act, it can give suggestions to the government. Interestingly, its demand for enforcement of its so-called directives clearly goes against the letter and spirit of the constitution. Under the clause 28 of the CIAA act 1991 (amendment 2001), the CIAA can give suggestions to the government on various issues. "Every constitutional authority can give suggestion to the government but cannot force it to stick to its suggestion ñ not even the CIAA," said the lawyer.

According to the Constitution of the Kingdom of Nepal 1990, the executive power lies in the cabinet for which it is held accountable but the CIAA seems to have invented its own constitution contrary to the clear mandate of the existing constitution. Is the CIAA above the constitution?

The so-called directive by the CIAA also proves that the prime minister Surya Bahadur Thapa's claim that his government inherits executive authority is hollow. Thapa's position with the CIAA is like that of Congress president Girija Prasad Koirala's claim to have real power summoning the meeting of former members of dissolved parliament.

Whatever Koirala claims, prime minister Thapa is now exercising real constitutional power and he can make tangible differences like the commissioners of the CIAA whose authority can shake the government.

"Constitutionally, the power is vested upon different organizations and His Majesty and cabinet is regarded as a real power but the situation dos not match in reality," said a constitutional lawyer.

According to the Constitution of the Kingdom of Nepal 1990, all the constitutional bodies fall under the His Majesty's government and there is no other parallel "super government". In reality the situation is different. By issuing so-called directives CIAA's commissioners have shown that they are the real source of executive power.

All other constitutional bodies or departments are the part of the executive wings of the state and enjoy only the functional autonomy and independence. They cannot claim to be another independent government unto themselves but the CIAA is exercising absolute power to paralyze the government mechanism.

Surprisingly the commissioners of CIAA also take oath in the name of the constitution pledging to protect and preserve it.

The constitution of Kingdom of Nepal 1990 states that the executive power of the Kingdom lies on the prime minister. According to article 35 of the constitution, the executive power of the Kingdom of Nepal shall, pursuant to this constitution and other laws, be vested in His Majesty and the Council of Ministers.

Under the article 35 (2), except otherwise expressly provided as to be exercised exclusively by His Majesty or at His discretion or on the recommendation of any institution or official, the powers of His Majesty under this constitution shall be exercised upon the recommendation and advice, and with the consent of the Council of Ministers. Such recommendation, advice and consent shall be submitted through the prime minister.

In a row of sharing power, no body knows who enjoy the real constitutional power.If this government enjoyed real constitutional power, all the constitutional bodies should fall under its umbrella. The situation is different and the government does not seem to enjoy the real power. So where is the real power?