Oli’s ordinance issuance draws criticism as an attack on democratic values and constitutional spiritLeaders from his own party and the opposition as well as experts describe issuing ordinances at a time of a pandemic as the government’s misplaced priority.
Political party leaders and experts have described the KP Sharma Oli government's move of introducing two ordinances as an attempt to undermine democractic principles, rule of law and equally unconstitutional too.
The Oli government on Monday introduced two ordinances at a time when the country should be focusing its attention on the Covid-19 pandemic. The ordinances seek to amend some provisions of the Political Party Act and the Constitutional Council (Functions, Duties, Powers and Procedures) Act.
Once amended, the Political Party Act will allow any party to split if 40 percent of its central members or parliamentary party members want to register a new party. The earlier provision had it that for a party to split, 40 percent of members of both the central committee and parliamentary party were required. Similarly, once the Constitutional Council is amended, the new provision will allow it to take decisions even with simple majority votes.
The existing provision states that “each matter submitted at the meeting shall be decided unanimously”. Sub-clause 6 says in case there is no unanimity among the Council chair and members, no decision shall be made.
The Oli government’s move has been opposed by leaders of his own Nepal Communist Party (NCP) as well. Even during the Cabinet meeting on Monday, according to a minister, Foreign Minister Pradeep Gyawali, Agriculture Minister Ghanashyam Bhusal and Energy Minister Barshaman Pun had expressed reservations about the ordinances.
“But the prime minister refused to pay heed,” the minister told the Post on Monday.
A senior ruling party leader said on Tuesday that the decision to issue ordinances showed the Oli government’s misplaced priorities.
“We are in an abnormal situation. In such times of crisis, the party and the government should not deviate from their main responsibility and should not involve in actions that undermine democratic and constitutional values and the spirit of the rule of law,” said Madhav Kumar Nepal in a statement. “At a time when the world is badly hit by Covid-19, our focus should be on combating the pandemic.”
Experts say Oli’s move also attracts some constitutional issues.
“Any attempt to amend the provisions related to the Constitutional Council through an ordinance is unconstitutional,” said Bipin Adhikari, an expert on constitutional affairs and former dean of the Kathmandu University School of Law. “It looks like the prime minister wants to demoralise the constitutional bodies.”
The Constitutional Council is a key agency that appoints officials at various constitutional bodies, including the Commission for Investigation of Abuse of Authority, the country’s top anti-corruption agency.
Concerns have also grown over Oli’s intent to seek amendments to the Constitutional Council provisions, as the government is facing allegations of protecting the corrupt.
“The prime minister wants to make other members of the Constitutional Council redundant,” said Adhikari. “The amendment will make the prime minister all-powerful in the council.”
The Council, headed by the prime minister, consists of the chief justice, Speaker and deputy Speaker of the House of Representatives, chairman of the National Assembly, and leader of the main opposition as members. The minister for law and justice also takes a seat when the appointment is related to the judiciary while the chief secretary functions as the secretary of the council.
According to the proposed amendment to the Constitutional Council Act, if the first meeting of the council fails to take a decision, the next meeting shall be called within 24 hours and decisions will be taken based on majority votes of the members present in the meeting. This amendment will give Oli the upper hand, as he can almost all the time have decisions in his favour, say experts.
Monday's development has also called the Office of the President's role into question, given the swiftness it showed to approve the ordinances.
Soon after the Cabinet that took the decisions, the ruling party held its Secretariat meeting. The meeting, however, ended long before it could discuss the Cabinet decisions, as the President's nod had already made the discussion redundant.
Within hours, the decisions to issue ordinances were published in the Nepal Gazette.
According to Adhikari, the Office of the President can hold the ordinances for at least four to five days for study before approving them.
“Such moves also weaken the Office of the President and raise concerns about it becoming a rubber stamp of the government,” said Adhikari.
Opposition parties have also taken exception to the ordinances.
“It has become apparent that the government is not serious about saving the lives of the people, and is bent on [attacking] the fundamentals of democracy and parliamentary system," said senior Nepali Congress leader Shekhar Koirala. “The constitution has envisioned ownership of constitutional bodies. So this is a betrayal to the Nepali people. The way the President has approved it without delay also raises a question over the integrity of the high office."
But a ruling party leader who is close to Oli told the Post that since several posts in the constitutional bodies are vacant, the government cannot wait forever in the name of consensus and unanimity. After this amendment, appointments in constitutional bodies will be expedited, the leader said.
He, however, refused to justify how this was an immediacy when the focus should have been on the fight against Covid-19.
Dinesh Tripathi, an advocate, said the government violated Article 284 of the constitution.
“It is against the principles of power devolution, checks and balances and parliamentary democracy,” said Tripathi. “The government is subverting the constitutional spirit and bypassing Parliament.”
A bill seeking an amendment to the Constitutional Council was in the federal parliament, but the government didn’t push it following a controversy.
Now that the House is in recess, the government is seeking to amend the provisions in the Constitutional Council Act through an ordinance and that’s wrong, said Tripathi.