Rule through ordinance threat to democracy, observers say – The Kathmandu Post
Under the principle of separation of powers, lawmaking is the prerogative of the federal parliament—the House of Representatives and the National Assembly.
But as an exceptional provision, the constitution allows the government to promulgate laws in the form of ordinance.
However, over the years the executive has made ordinances a norm, which should be actually an exception.
The erstwhile KP Sharma Oli government had issued around a dozen and a half ordinances, some when the House was in recess and others when the House was dissolved. Oli had dissolved the House twice—in December last year and in May this year. Oli met with widespread criticism for unparliamentary practices, which threatened the rule of law, constitutionalism and the principle of separation of powers.
While restoring the House on July 12, the Supreme Court ordered the appointment of Sher Bahadur Deuba as prime minister, throwing Oli out of office. Many believed it was a victory for constitutionalism and the rule of law.
Deuba had just a handful of tasks to perform—strengthening the fight against Covid-19, bringing constitutionalism back on track and taking the country to elections due next year.
But Deuba has been doing exactly what Oli was criticised for.
The Deuba government is going even one step further. It is planning to withdraw at least four bills presented before the House and bring ordinances by proroguing the House.
The Ministry of Law, Justice and Parliamentary Affairs on Wednesday sent a letter to the Parliament Secretariat requesting it to return the four bills that are either registered at the secretariat or have been endorsed by one of the houses.
“The secretariat has received a letter requesting the withdrawal of four bills,” Gopal Nath Yogi, secretary of the House of Representatives, told the Post. “They can be withdrawn only after following the due course.”
Rule 121 of the Regulations of the House of Representatives sets different conditions for withdrawal of bills.
Those bills that are registered at the lower house can be withdrawn in consent with the Speaker while the bills at the upper house can be withdrawn if the chairperson allows it.
However, the bills that have gone through one of the houses can only be withdrawn if that house allows it. A majority of the lawmakers present have to endorse a proposal for the withdrawal.
Among the four bills, the bill on railways has already been endorsed by the National Assembly while the Federal Civil Service Bill has got the approval of the lower house.
Two others—the bill to revise a few Nepal Acts related to sexual violence and the bill to amend Criminal Code and Criminal Procedure—were registered at the National Assembly on September 15.
A senior official at the Law Ministry said the plan to withdraw the bills is aimed at giving a fresh start—that the incumbent administration wants to make its own laws so as not to continue with what were introduced by the erstwhile government.
“It is possible that these laws will be issued through ordinance,” said the official who wished not to be named fearing controversy. “The government needs these laws urgently. But the issue is, there is a situation where these bills may not get through Parliament in the current context.”
The main opposition, CPN-UML, has been resorting to obstruction of both houses from the very first meeting of the current session that commenced on September 8. It has been opposing the decision of Speaker Agni Sapkota to not strip 14 leaders of their posts as members of the House of Representatives.
An official at the Parliament Secretariat said it is possible that the session ends after Sunday.
The meeting of the lower house has been called for Friday while the National Assembly is sitting on Sunday.
“It will seem logical to end the session starting Sunday midnight as Dashain would have commenced by then,” said the official on the condition of anonymity as he was not allowed to speak to the media. “The prorogation of the session will open the door for introducing ordinances.”
Article 114 says the President, when the parliament is not in session, can promulgate the ordinances on the recommendation of the Council of Ministers.
But the question, say experts, is not whether the government can issue ordinances: the question is whether they are being issued as per the need and whether they are being issued with ulterior motives.
The ordinance to amend the Political Parties Act, 2017 is one example. It has by now become apparent that the ordinance was issued with the sole purpose of splitting the CPN-UML.
The government introduced the ordinance on August 17. The Madhav Nepal group split from the UML on August 26. A month later, the government repealed the ordinance on September 27. The UML smelt a rat in the introduction of the ordinance, and rightly so, as the Nepal faction would not have been able to split had the ordinance not been in place.
“The government cannot prorogue the House just because it wants to introduce an ordinance,” said advocate Dinesh Tripathi, who specialises on constitutional law. “In functional democracy, lawmaking is the prerogative of the legislature and elected representatives should be allowed to do their job, instead of the executive jumping in.”
According to experts, ordinances are stopgap measures envisaged by the constitution to deal with critical situations that arise when Parliament is not in session. The executive cannot make ordinance a tool to impose laws arbitrarily.
The Deuba government is in a quandary also because there is no law on the administration of oaths. In the absence of the law, new ministerial appointments could be dragged into court. Deuba is under pressure to expand his Cabinet. An earlier ordinance on oath-taking has lapsed after it failed to get through Parliament within 60 days from the day it was presented there.
To bring an ordinance for oaths also the Deuba government needs to prorogue the House.
Experts say Nepal’s rulers have thrown constitutionalism, rule of law and parliamentary practices out of the window and have been functioning to fulfil their vested interests, which could be detrimental to democracy.
They say it would be a fraud on the constitution if the Deuba government withdrew the bills which have already been endorsed by one of the two houses, only to issue an ordinance.
“Lawmaking is a serious process,” said advocate Mohan Lal Acharya, a constitutional lawyer.
According to him, ordinances are not transparent and the executive often tends to use them to bypass the country’s top lawmaking institution.
“There are deliberations on bills that are presented before Parliament,” said Acharya. “Such deliberations ensure transparency. This process checks the executive from pushing through laws arbitrarily. Trampling upon the Parliament is akin to trampling upon democratic system.”
Binod Ghimire covers parliamentary affairs and human rights for The Kathmandu Post. Since joining the Post in 2010, he has reported primarily on social issues, focusing on education and transitional justice.