Government by ordinance threatens democracy, observers say
Under the principle of the separation of powers, legislating is the prerogative of the federal parliament, the House of Representatives and the National Assembly.
But exceptionally, the constitution authorizes the government to promulgate laws in the form of ordinances.
However, over the years the executive has made ordinances a standard, which in fact should be an exception.
The former KP Sharma Oli government issued a dozen and a half ordinances, some when the House was on recess and others when the House was dissolved. Oli had dissolved the House twice, in December of last year and in May of this year. Oli was widely criticized for his unparliamentary practices, which threatened the rule of law, constitutionalism and the principle of the separation of powers.
During the restoration of the House on July 12, the Supreme Court ordered the appointment of Sher Bahadur Deuba as Prime Minister, toppling Oli. Many thought it was a victory for constitutionalism and the rule of law.
Deuba only had a handful of tasks to accomplish: stepping up the fight against Covid-19, getting constitutionalism back on track and bringing the country to elections scheduled for next year.
But Deuba did exactly what Oli was criticized for.
The Deuba government goes even further. He plans to withdraw at least four bills introduced in the House and make orders proroguing the House.
The Ministry of Law, Justice and Parliamentary Affairs on Wednesday sent a letter to the parliamentary secretariat asking it to return the four bills which are either registered with the secretariat or approved by one of the chambers.
“The secretariat has received a letter requesting the withdrawal of four bills,” Nath Yogi, secretary of the House of Representatives, told the Post. “They can only be removed after following the deadline.”
Article 121 of the Standing Orders of the House of Representatives sets various conditions for the withdrawal of bills.
Bills registered in the lower house can be withdrawn with the consent of the president, while bills in the upper house can be withdrawn if the president allows it.
However, bills that have gone through one of the houses can only be withdrawn if that house allows it. A majority of lawmakers present must approve a withdrawal proposal.
Of the four bills, the Railway Bill has already been approved by the National Assembly while the Federal Civil Service Bill has obtained lower house approval.
Two others, the draft revision of some Nepalese laws relating to sexual violence and the draft law amending the penal code and criminal procedure, were tabled in the National Assembly on September 15.
A senior law ministry official said the plan to withdraw the bills was intended to give a fresh start – that the incumbent administration wanted to make its own laws so as not to continue with what was presented by the ‘old government.
“It is possible that these laws will be enacted by ordinance,” said the official, who wished not to be named fearing the controversy. “The government needs these laws urgently. But the problem is that there is a situation where these bills may not pass through Parliament in the current context. “
The main opposition, the CPN-UML, resorted to obstruction of both chambers from the very first meeting of the current session which began on September 8. She opposed President Agni Sapkota’s decision not to strip 14 leaders of their positions as members of the House of Representatives.
An official at the Parliament secretariat said it was possible for the session to end after Sunday.
The lower house meeting was called on Friday as the National Assembly sits on Sunday.
“It will seem logical to end the session from midnight Sunday as Dashain would have started then,” the official said on condition of anonymity as he was not allowed to speak to the media. “The prorogation of the session will open the door to the introduction of ordinances.”
Article 114 says that the President, when the parliament is not in session, can promulgate ordinances on the recommendation of the Council of Ministers.
But the question, experts say, is not whether the government can issue orders: the question is whether they are issued as needed and whether they are issued with ulterior motives.
The ordinance amending the 2017 law on political parties is one example. It has now become clear that the order was issued for the sole purpose of splitting the CPN-UML.
The government introduced the ordinance on August 17. The Madhav Nepal group split from UML on August 26. A month later, the government repealed the ordinance on September 27. UML smelled a rat when introducing the ordinance, and rightly so, as the Nepalese faction could not have separated if the ordinance had not been in place.
“The government cannot prorogue the House just because it wants to introduce an ordinance,” constitutional law lawyer Dinesh Tripathi said. “In functional democracy, legislating is the prerogative of the legislature and elected officials should be allowed to do their jobs, rather than the executive intervening. “
According to experts, ordinances are remedial measures envisaged by the constitution to deal with critical situations that arise when Parliament is not in session. The executive cannot use the ordinance as a tool to impose laws arbitrarily.
The Deuba government is also in embarrassment because there is no law on the administration of oaths. In the absence of legislation, new ministerial appointments could be taken to court. Deuba is under pressure to expand his practice. An earlier order on the taking of the oath lapsed after it was not passed by Parliament within 60 days from the day it was introduced there.
To make an ordinance for the oaths, the Deuba government must also prorogue the House.
Experts say Nepalese leaders threw constitutionalism, rule of law and parliamentary practices out the window and functioned to serve their personal interests, which could be damaging to democracy.
They say it would be a fraud on the constitution if the Deuba government withdraws bills that have already been approved by one of the two chambers, to issue an ordinance.
“Legislating is a serious process,” said lawyer Mohan Lal Acharya, a constitutional lawyer.
According to him, the ordinances are not transparent and the executive often tends to use them to bypass the highest legislative institution in the country.
“There are deliberations on bills that are presented to Parliament,” Acharya said. “Such deliberations ensure transparency. This process prevents the executive from passing laws arbitrarily. Trample on Parliament is like trample on the democratic system.