The government on Tuesday recommended that President Ramchandra Paudel issue two ordinances to amend the Nepal Special Services Act and the Constitutional Council (Functions, Duties, Powers and Procedures) Act.

After studying for two days, he issued the first ordinance on Friday but withheld the second. “The ordinance related to the Constitutional Council is under study. The President will take a proper decision after studying it,” Baburam Kunwar, Paudel’s legal adviser, told the Post without elaborating what the ‘proper decision’ would be.

If senior officials at Sheetal Niwas are to be believed, the President is unhappy with the ordinance that allows appointments to constitutional positions without parliamentary hearing, which is mandatory as per the constitution.

The ordinance’s clause titled “No obstruction to appointment before parliamentary hearing,” states that if the House of Representatives has been dissolved, any candidate recommended by the Constitutional Council will be appointed without waiting for a parliamentary hearing. It envisions the parliamentary hearing after the parliamentary elections, which are scheduled for March 5.

“If they do not get through the parliamentary hearing within 45 days the House of Representatives comes into function, they will automatically be relieved of their positions,” reads a provision in the ordinance.

The President is unhappy with the ordinance for two reasons: first it has eased the recommendation process and second, it has cleared the way for the appointment without parliamentary hearing, according to officials.

In July, Paudel had refused to authenticate the bill to amend the Constitutional Council Act that allowed the prime minister and a majority of available members—as few as two—to make appointments to constitutional positions, saying it contradicted the constitution.

The Sushila Karki government had retained the provision while adding another to clear the appointment without a hearing. “This is much more regressive than the one the President had refused to authenticate in July,” said a senior official at Paudel’s Office. “He is against any act that violates the constitution.”

The government has recommended the ordinance that overrides the mandatory constitutional provision of parliamentary hearing. It is also in the process of furnishing written clarification to the Supreme Court over the appointment of Karki, the former chief justice, as the prime minister as well as for the dissolution of the House of Representatives.

The constitution gives no space for the chief justice or a non-member of the lower house to become prime minister. Likewise, going by the Supreme Court’s precedent, the dissolution of the lower house too is a breach of the statute.

However, except for a few political parties and a small section of society, the moves were accepted as ‘the need of the time’. They defend both Karki’s appointment and House dissolution—despite both being against the letter and spirit of the constitution—as steps to stop the country from plunging into a deeper crisis while also warning there should be no further breach of the constitution.

“The ordinance is a clear breach of the constitution. How can an ordinance quash the expressed constitutional provision of parliamentary hearing?” questioned senior advocate Dinesh Tripathi. “This move cannot be justified under any pretext.” He says it is unfortunate of the Karki government, which has the responsibility to correct any breach of the constitution, to itself do so.

Addressing a ceremony to mark the 10th Constitution Day on September 20, Karki had claimed that non-implementation of the constitution in its true spirit was the main reason for the political crisis the country was witnessing.

However, now she is treading the same misguided path of her predecessors, the experts say. She was a staunch critic of the moves of the former KP Sharma Oli government to make appointments in constitutional bodies without parliamentary hearing.

One reason the Karki administration wants the ordinance is to fill the vacant positions, including that of the chief election commissioner at the Election Commission, which has the responsibility to hold elections.

However, officials at the commission say no work has stalled in absence of two commissioners. Currently, the commission has three of the five commissioners “We have already completed over 60 percent of preparations and have faced no problem in the absence of two commissioners,” said a senior official at the commission.

Constitutional experts say the current government should refrain from taking decisions that have long-term implications.

“Holding timely elections is this government’s primary job. It will do well not to unnecessarily wade into controversial territory, which will only earn it a bad name,” said Tripathi.