Supreme Court orders government not to enforce citizenship ordinanceConstitutional Bench says legal complications could arise if the ordinance fails to get through Parliament.
The Supreme Court has issued an interim order to the government not to implement the Citizenship Amendment Ordinance saying that it could lead to long-term implications.
“A legal complexity could arise on the subject of distributed copies of citizenship certificates if the controversial ordinance fails to get endorsed through the federal parliament,” states the order issued by the Constitutional Bench on Thursday.
All ordinances have to be passed by Parliament within 60 days after the day on which a meeting of both Houses is held, according to the constitution.
In a bid to rope in Janata Samajbadi Party’s support, a beleaguered Prime Minister KP Sharma Oli on May 23 had recommended the issuance of the Nepal Citizenship (First Amendment) Ordinance 2021. The ordinance followed the dissolution of the House of Representatives by Oli just two days ago.
“An interim order has been issued in the name of the defendants not to implement the Nepal Citizenship (First Amendment) Ordinance 2021, which was promulgated by the President on May 23, until the final decision,” states the order.
The ordinance had been challenged with as many as six petitions, arguing that the caretaker government has no authority to issue an ordinance that will have long-term effect.
According to the ordinance, the children of couples who received citizenship in Nepal before September 20, 2015 would be issued citizenship by descent. It also said children of Nepali mothers will be entitled to citizenship by descent if fathers’ whereabouts are unknown.
The Citizenship Act had been gathering dust in Parliament for years, as parliamentarians had failed to find a common ground on certain issues. It has remained one of the most sensitive issues among Nepali politicians, just as a lack of an act risks many going stateless.
Of the several demands of the Mahatha Thakur-Rajendra Mahato faction to support Oli, the passage of the Citizenship Act was one. Oli’s CPN-UML itself had stood strongly against it. But after dissolving the House, Oli issued the ordinance for his political gains.
“A large number of children of more than 190,000 people who are citizens by birth have been rendered stateless as the state has rejected them citizenship. Therefore we had been demanding that the government resolve the issue,” said Keshav Jha, a leader of the Janata Samajbadi Party. “With no citizenship, they were unable to get jobs, education, passports, or travel abroad.”
The Constitutional Bench has also called the defendants–Office of the Prime Minister and Council of Ministers and the Office of the President–for discussion on the demands of the six petitions, including the one registered by senior advocate Borna Bahadur Karki and advocate Birbhadra Joshi among others.
Chief Justice Cholendra Shumsher Rana had formed the Constitutional Bench on the basis of seniority on June 4 with Deepak Kumar Karki, Mira Khadka, Hari Krishna Karki and Ishwar Prasad Khatiwada as members after the composition of an earlier bench formed for the hearing on the House dissolution case had been questioned.
Oli’s move to bring the ordinance a day after dissolving the House of Representatives had been criticized by many and the Supreme Court too noted this and questioned the government’s intention, saying that issuing the ordinance a day after dissolving the House would be tantamount to “colourable legislation” and interference on constitutional right of Parliament.
“The ordinance brought with a certain intention bypassing Parliament is considered colourable legislation and that won’t get constitutional acceptance according to legal principle,” the Supreme Court said.
The court also noted that although there are provisions for the government to bring ordinances but that too has limitations as the legislature has the inherent right to make laws.
“Ordinances cannot be issued going beyond the limitations of the constitution. Issuing ordinance by bypassing Parliament for the benefit of governance or to fulfil any political interest will create a situation that could mean an inappropriate interference in the right of legislation and its effectiveness,” states the order.
The court order noted that issuing an ordinance right after the government’s decision to dissolve Parliament cannot be accepted as a common and regular practice.
“If we take such practice easily as a common and regular one, it would interfere with the constitutional right of the legislature or its jurisdiction and would have inappropriate effect on use and implementation of provisions of the constitution as per the principle of separation of powers,” reads the order.
The court did not find the defendants’ clarifications on why the legal provisions were necessary immediately satisfactory.
But leaders of the Janata Samajbadi Party have said they feel that the Supreme Court’s order is intended to create problems instead of resolving them.
“The court should test the legal and constitutional basis of the decisions but not what political parties demand and issues related to governance,” said Brikhesh Chandra Lal, a leader of the Janata Samajbadi Party and former member of the National Assembly. “This decision will further escalate the ongoing problems due to the lack of a law in distributing citizenship instead of resolving them.”
As the existing law on citizenship makes it difficult for single mothers to pass on citizenship to their children, the ordinance had provisions to resolve this issue.
Women’s rights activist and advocate Meera Dhungana, who had pleaded against the petitions demanding that they be quashed, said there may have been problems regarding the process of how the law had been introduced, but the problem of acquiring citizenship exists for a large number of people and this problem should be resolved.
“It’s not that the ordinance resolves all the existing problems, but people who are rendered stateless could get a new lease of life,” said Dhungana. “Now with the interim order, they will continue to suffer and nobody knows for how long.”
The Bill to amend Nepal Citizenship Act-2006 has been pending in Parliament since August 2018.
“All the contents of the Bill to amend Nepal Citizenship Act-2006 were thoroughly discussed at the Parliamentary State Affairs and Good Governance Committee for around three months,” said Sashi Shrestha, chairperson of the parliamentary committee of the dissolved Parliament. “Instead of endorsing it through Parliament, the government used the ordinance as a tool to fulfil political interests.”
Lawyers who petitioned the Supreme Court said that the question is over the process and not the content of the law.
“During the hearing, justices had questioned the defendants why they didn’t endorse the law through Parliament if it was so important,” said senior advocate Borna Bahadur Karki, one of the petitioners.
The Constitutional Bench in its order has said that the content of the ordinance can be introduced through parliamentary procedure.
“In such a case, it would be appropriate to make necessary arrangements under the Act formed after the bills are endorsed from the federal parliament,” the Supreme Court stated. “It is the regular constitutional process of making laws.”