Lawyers those close to the Maoist party said that the government had the authority to sack the Army Chief even if the President does not approve it. They argued that the government was not even required to inform the President about the sacking since the Interim Constitution was silent about the role of the President on government action against the Army Chief. However, the interim constitution clearly mentions that the President shall appoint the Army Chief upon recommendation of the government.
"In this context, Article 144 (5) of the Constitution, which says that other matters related to the army shall be dealt with as per the existing laws (Military Act in this case)," argued advocate and General Secretary of Nepal Bar Association Raman Kumar Shrestha.
"Had there any role of the President in action against the Army Chief, there would have been a separate provision in the constitution on the President´s role," he said.
But advocate Madhav Kumar Basnet, an expert on constitutional affairs, argues that the dismissal requires President´s approval under the Legal Interpretation Act. Clause 16 of the Act says that the same person who appoints an individual also possess the power to take action against the same individual. "If the law is to be followed, the government should take action against the Army Chief through the President," Basnet said.
Shrestha, however, argues that the Legal Interpretation Act cannot be applicable all the time. For instance, the President appoints Attorney General on government´s recommendation but the President had no role when the PM relieves him.
Referring to Article 165 (2) of the Interim Constitution, Basnet said the Legal Interpretation Act is applicable to interpret the existing main law of the country. "So this law is also applicable in the case of sacking of the Army Chief."
Basnet also questions the government´s move to take action against Katawal from the very beginning. "The clarification should have been sought through the President for it to be a constitutional move, as the President is the supreme commander of the army," Basnet said.
What next?
There are many speculations over the next constitutional move of the President, who is meeting constitutional experts over the Katawal row. But the experts said that the President had now very limited constitutional role to play in this case.
Former President of Nepal Bar Association and member of the Interim Constitution Drafting Committee Shambhu Thapa said, "The issue is more political than constitutional. The Prime Minister should take the President into confidence and both should engage in effective consultations with each other to seek a solution to the problem."
Thapa said that any move of the President should be in spirit of the peace process, Comprehensive Peace Agreement and the 12-point agreement between the parties.
Advocate Dr Bhimarjun Acharya, an expert on constitutional affairs, said the President had the right to warn the government if he is not satisfied with the government decision and ask the government to correct it. For this, the government should first apprise the President of its decision," he said.
Basnet said the President, in his capacity as the supreme commander of the army, can question the cabinet decision on Katawal without his consent and of the coalition partners. "He can then order Katawal to continue his job until the political parties find a solution to the problem," he said.
kiran@myrepublica.com
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