After all this DRAMA, I want to look into our CONSTITUTION Myself, so if you guys have Copy of Interim Constitution fifth amendment (where President is mentioned)!!

I have till 3rd amendment, where President is not mentioned!!


Thx in advance!!

Here it is..

www.unmin.org.np/downloads/keydocs/2008-07-15-Interim.Constitution.Fifth.Amendment.ENG.pdf

http://light.sajha.com/sajha/chat/smileys/m-smile.gif

Thank you for the link....

also if you have the FINAL Constitution itself let me know, I can come to conclusion by this too.

If you are curious about constitutional provision on the appointment of COAS, you have to check the forth amendment to the constitution.

Here is the final draft of the constitution (before any amendments) - The Interim Constitution of Nepal, 2063 (2007)

www.worldstatesmen.org/Nepal_Interim_Constitution2007.pdf

And, here is the link for forth amendment -

http://www.unmin.org.np/downloads/keydocs/2008-05-28-Interim.Constitution.Fourth.Amendment.ENG.pdf

The key points are:

In Article 144 of the Constitution,
(1) The following Clause (1A) has been added to Clause (1): “(1A) The
president shall be the Supreme Commander of the Nepal Army.”
(2) The words “by the Council of Ministers” in Clause (2) have been replaced
by the words “by the President on the recommendation of the Council of
Ministers”.

Thanks again,
i'll do my research now ;-)

INTERIM
CONSTITUTION OF NEPAL, 2063 (2007)
PART 5
EXECUTIVE
37. Executive Power: 1) The executive power of Nepal shall, pursuant to this... Read More
Constitution and other laws, be vested in the Council of Ministers.
(2) The responsibility of issuing general directives, controlling
and regulating the administration of Nepal shall, subject to this
Constitution and other laws, lie in the Council of Ministers.
(3) The executive functions of Nepal shall be taken in the name
of the Government of Nepal.
(4) Any decision, order or implementation warrant to be issued
in the name of the Government of Nepal, pursuant to clause (3) above,
shall be authenticated as prescribed by law

38. Constitution of Council of Ministers: (1) The Prime Minister and the
Council of Ministers under the chairpersonship of the Prime Minister shall
be constituted by political consensus.
Explanation: For the purpose of this Constitution "political
consensus" means the political consensus reached between the seven... Read More
parties- Nepali Congress, NCPN(UML), Nepali Congress (Democratic),
Janamorcha Nepal, Nepal Sadbhawana Party (Anandidevi), Nepal Majdur
Kisan Party, Samyukta Bam Morcha Nepal and NCP(Maoist) on 22
Kartik 2063 (November 8, 2006).
(2) If consensus cannot be reached pursuant to clause (1), the
Prime Minister shall be elected by a majority of two-thirds of the
members of the Legislature –Parliament.

60. Restriction on discussion: (1) No discussion shall be held in the
Legislature-Parliament on a matter which is under consideration in any
court of Nepal, and about anything done by a Judge in course of
performance of his or her judicial duties.
Provided that nothing in this Article shall be deemed to hinder... Read More
the expression of opinion about the conduct of a Judge during
deliberations on an impeachment motion.
(2) The provision made pursuant to clause (1) above, shall also
be applicable to the Constituent Assembly.

PART 19
EMERGENCY POWER
143 Emergency Power: (1) If a grave crisis arises in regard to the sovereignty
or integrity of Nepal or the security of any part thereof, whether by war,
external invasion, armed rebellion or extreme economic disarray, the... Read More
Council of Minister of the Government of Nepal may, by Proclamation,
declare or Order a state of emergency to be enforced in any specified part
or the whole of Nepal.
(2) The Proclamation or the Order issued under clause (1) above
shall be laid before the meeting of the Legislature-Parliament for approval
within a month from the date of its issuance.
(3) If a Proclamation or Order laid for approval pursuant to clause
(2) above is approved by a two-third majority of the Legislature-
Parliament present at the meeting such proclamation or order shall
continue in force for three months from the date of its issuance.

PART 20
PROVISION REGARDING THE ARMY
144. Formation of Nepal Army: (1) There shall be a Nepal Army in Nepal as
an institution.
(2) The Council of Ministers shall appoint the Commander-in-Chief... Read More
of the Nepal Army.
(3) The Council of Ministers shall control, mobilize and manage the
Nepal Army in accordance with the law. The Council of Ministers shall,
with the consent of the political parties and by seeking the advice of the
concerned committee of the Legislature-Parliament, formulate an
extensive work plan for the democratization of the Nepal Army and
implement it.

147. Management and Monitoring: The other arrangements pertaining to the
management and monitoring of the army and its arsenal shall be done in
accordance with the "Comprehensive Peace Accords" (Bishtrit Shanti
Samjhauta) concluded between the Government of Nepal and Nepal
Communist Party (Maoist) on 5 Mangsir 2063 (November 21, 2006) and... Read More
the agreement regarding the ‘Monitoring of Arms and Army Management'
reached on 22 Mangsir 2006 (December 8, 2006).

158. Power to Remove Difficulties: If any difficulty arises in connection with
the implementation of this Constitution, the Council of Ministers may
issue necessary Orders to remove such difficulties, and such Orders shall
have to be endorsed by the Legislature-Parliament or the Constituent
Assembly within a month.


Bill on Amendments to the Interim Constitution, 2007 (B.S. 2063) - FIFTH AMENDMENT

Preamble: As it is desirable to make amendment in the Interim Constitution of Nepal
2007, the Constituent Assembly, in the capacity of the Legislature-Assembly pursuant to... Read More
Article 83 of the Interim Constitution of Nepal 2007, issues this amendment.
1. Brief Title and Commencement: (1) This amendment shall be known as
“The Interim Constitution of Nepal, (fourth amendment), 2008 (B.S. 2065)”.
(2) This amendment shall come into effect immediately.

~*~*~*~*~*~**~*~*~*~**~

The forth amendment amends the above articles 37, 143 and 144 activating the power of the president.

The law is unclear in the dismissing power and authority of the president in regards to the Amry Chief.

However, whenever there is a vaccum of Law, the "Nepal Acts Interpretation Act 2010" applies. The act mentions clearly that the authority granting appointment shall have the power to dismiss. Therefore, the President-who has the authority to appoint pursuant to Fifth amendment has the sole authority tofire the army chief NOT the Prime Minister.

The Council of Ministers consists of all Ministers -  A Full Cabinet. Here, 4/5 parties representing in the Cabinet did not support the notion to dismiss the army chief. Therefore, t is a minority decision, which is again against the notion of Democratic Norms.

Finally, whenever there is a legal vaccum or need of interpretation of statute, the Supreme Court comes into play as the SOLE AUTHORITY TO INTERPRET LAWS. Therefore, The Supreme Court will define the situation. Likewise, Supreme Court has the right to call an Amicus Curie in matters related to National Inerest, as in here. Amicus Curie may comprise of national and international legal experts.

Yo kura haru Maobadi  ajha communist vanaundale  bujhdaina. Chhu ya.

But isn't the Granting Authority is CABINET ?? President shall after recommendation of Prime Minister right???

How is it minority decision? I feel Cabinet took a decision right??

geda gudi,

Forth amendment clearly mentions : " The President on the recommendation of the Council of Ministers shall appoint the Commander-in-Chief". It's nowhere mentioned in the constitution whether the recommendation is binding or not. Let's wait for what supreme court has to say there.

And, as Santosh giri explianed, the authority granting appointment shall have the power to dismiss. The cabinet did two decisions there: fired CAOS Katwal from the post and appointed Khadka as COAS. As per 144(2) in forth amendment, cabinet can't make the final call on dismissing or appointing COAS; the decision has to be taken by the President. President (not cabinet) is the only authority to communicate to CAOS about the appointment or dismissal according to the constitution.

The proper channel would have been : the cabinet making the decision and forwarding it to the President for implementation. In that case, the President would have been in trouble because the constitution is not very clear about whether the president can reverse the decision made by the cabinet. Here the minority member of the cabinet (where only one third members were present) took the decision on sacking one CAOS and appointing another one. Rather than forwarding the decision to the President for implementation, they forward it to the army headquarter.

For me, the move made by Maoist is more like : I am one of the advisors of Obama office to recommend someone for Surgeon General. Rather than forwarding my opinion to Obama, I send a letter to Sanjay Gupta notifying him that he has been appointed Surgeon General by me and copy the message to Obama. :-)

Just my two cents....

geda_gudi...sambhidhan ko pachau sansodhan padi sakiyena bhanya...khoi k conclusion niskiyo ta??