Why the President is expected to shelve proposed ordinanceBidya Devi Bhandari could draw support from the widespread criticism of the recommended action.
With just a few weeks remaining in her term, President Bidya Devi Bhandari is in a dilemma over whether to authenticate the highly controversial ordinance that seeks to amend the National Criminal Procedure (Code) Act-2017.
Despite raging controversy, the government on Monday forwarded the ordinance to the President’s Office to amend the law, to pave the way for pardoning of politicians convicted of heinous crimes including killings. The President has already started consultations with experts and stakeholders, and speculations are rife that she will sit on the ordinance.
On Tuesday, the President met two civil society groups and sought their views on whether the proposed ordinance is in line with the national laws and the constitution, according to an official at the President’s Office.
Both the groups reportedly advised the President that she should not authenticate the ordinance, which they said was forwarded by the government with the ulterior motive of pardoning and releasing convicted criminals.
“The President will decide on it by towing the constitutional line,” said Lalbabu Yadav, a political adviser to the President. “She is weighing the law’s pros and cons, and is consulting experts and stakeholders. She will not go against the letter and spirit of the constitution. As the current government is a caretaker one, we need to evaluate the merit of its action,” said Yadav.
The President’s Office is well aware of the widespread opposition to the proposed ordinance from political leaders, members of the civil society and others, Yadav added.
Bhandari plans to consult the government as well on the proposed piece of legislation.
Earlier in September, after the government forwarded a controversial citizenship bill, President Bhandrai had similar consultations with civil society groups, mediapersons, and sitting and retired security officials, among others, and ultimately decided not to authenticate it. Her action drew strong criticism from political parties and the legal fraternity who accused the President of overstepping her ceremonial bounds.
The constitution clearly defines the President’s roles, responsibilities and jurisdiction. Defining the functions, duties and powers of President, Article 66 (2) states, “In exercising the powers or duties under clause (1), the President shall perform all other functions to be performed by him or her on the recommendation and with the consent of the Council of Ministers than those functions specifically provided to be performed on the recommendation of any body or official under this Constitution or Federal Law. Such recommendation and consent shall be submitted through the prime minister.”
Earlier, Sher Bahadur Deuba, during his previous stint as prime minister in 2016, and then prime minister Pushpa Kamal Dahal in 2017, had tried to amend the criminal code, but both desisted after strong reservations by attorney generals.
A Cabinet meeting on Sunday had decided to bring the ordinance to eventually pave the way for the withdrawal of cases against Resham Chaudhary—the alleged ‘mastermind’ of the 2015 Tikapur incident in which eight people had died—and some leaders and cadres of the CK Raut-led Janamat Party.
Similarly, the leaders of the Netra Bikram Chand-led Nepal Communist Party who are serving jail time on similar charges could also benefit from the new law.
Sources said the government has proposed to amend section 116 of the National Criminal Procedure (Code) Act-2017 to add a provision allowing withdrawal of sub judice cases of political nature.
The government wants to release Chaudhary and other leaders and cadres of the Raut’s party, so as to seek their backing for the ruling coalition, which is just three seats short of a majority in Parliament. Although the coalition has 136 seats, Congress lawmaker Tek Bahadur Gurung, who is facing a corruption charge, cannot work as a lawmaker. The coalition needs 138 seats to establish a parliamentary majority.
As per the agreement reached between the government and different political outfits (of Chaudhary, Raut and others), the government will withdraw cases against their leaders and cadres, sources familiar with the draft ordinance said.
The government move has drawn widespread criticism including from political parties, civil society, and human rights defenders.
On Tuesday, 13 former inspectors general of Nepal Police in a joint statement said the proposed ordinance goes against the very spirit of the constitution, previous verdicts and precedents of the Supreme Court and the criminal justice system.
“We strongly demand an immediate repeal of the ordinance as it discourages and disappoints existing and former security personnel and their families,” they said in the statement.
Seven Nepal Police personnel and a child were killed in the August 2015 Tikapur incident in the run-up to the promulgation of the constitution. Chaudhary, who has been convicted of masterminding the killings, was not present at the scene of violence, according to various accounts.
Meanwhile, backing the proposed ordinance, two ethnicity-based groups, the Tharu Kalyankarini Sabha and the Tharuhat Tharuwan Joint Struggle Committee, in a joint statement on Tuesday threatened to launch an agitation if the President rejects it.
Dhaniram Chaudhary, the chairman of the Tharu Kalyankarini Sabha, as well as the Tharuhat and Tharuwan Joint Struggle Committee, said they welcome the proposed ordinance and would strongly resist any attempts to abort it.
An aide to Prime Minister Deuba said the likelihood of the President authenticating the ordinance is slim.
“We sensed that President Bhandari would deal with the new ordinance the same way she did with the citizenship bill. But her action won’t affect the ruling alliance or the beneficiaries of the proposed ordinance,” said the aide.
“If the ordinance fails, the ruling coalition will simply amend the law after the new House of Representatives convenes.”
The Election Commission is reportedly planning to present the final results of the November 20 elections to the President on Thursday.
There is a more amicable way out of the impasse. If the President summons the House soon, then the burden for the Act’s amendment will be transferred to the new parliament. “That way, both the President as well as the ruling coalition will be able to save face,” said the prime minister’s aide.
Tika Dhakal, information and communication expert to the President, said President Bhandari is currently holding consultations with experts and stakeholders.
“It’s all and good if the President is in a position to soon convene a new session of the Parliament, in which case there would be no need to authenticate the ordinance,” said Dhakal.
“Otherwise, she will decide on the ordinance after careful consideration of its provisions as well as the constitution.”