An ordinance nation, and rule of lawHow President, despite having constitutional roles, can be instrumental in keeping political processes on track.
When the Sher Bahadur Deuba government on Tuesday recommended an amendment to some of the provisions of the Political Parties Act-2017, it was largely expected that the President would promulgate it without any delay. Even though the Deuba government had already taken a lot of flak for recommending the ordinance, there was no way the President could have stopped it.
On Tuesday evening, a Sheetal Niwas adviser told the Post that President Bidya Devi Bhandari would promulgate the ordinance on Wednesday. And she did.
As a result of the ordinance on Wednesday, two parties—the CPN-UML and the Janata Samajbadi Party—have split.
The ordinance issued by the Deuba government is similar to the one brought by the KP Sharma Oli government in April last year, save some technicalities—numbers in the Central Committee and Parliamentary Party—as both are intended at easing party splits.
One stark difference was that President Bhandari held the government recommendation at least for a day to “study” it before promulgating it. Similar recommendations were made by the erstwhile Oli government also in the past, but Bhandari’s promptitude then used to be spectacular, forcing some to give the Office of the President the moniker of “rubber stamp”.
This time around, according to Lal Babu Yadav, a political adviser to President Bhandari, she wanted to hold consultations.
“The President did consult us after the ordinance was recommended by the [Deuba] government,” Yadav told the Post. “Anyway, as a constitutional President, she could have done nothing except promulgating it. She did so a day later. She did the same during previous governments also and she will do the same in the future.”
Article 61 (1) of the constitution says the country has the President as the head of state whose primary responsibility is to abide by and protect this constitution.
The question, however, is not whether the President should or should not endorse any government recommendation, according to observers. The question, they add, is also not that she took a day to promulgate the ordinance recommended by the Deuba government.
“Actually, the President did the right thing by taking at least a day before promulgating the ordinance sent by the government. Yes, it could have been better had she asked the government to reconsider it,” said Dinesh Tripathi, a senior advocate who specialises on constitutional law.
“But could she ask the government to reconsider? No. Because she had lost the moral ground by swiftly approving and validating every move taken by the Oli government.”
Bhandari is the second President of the six-year-old republic of Nepal. She is currently in her second term and fourth year of her presidency. Though the constitution has defined the President’s role, observers say the duty of protecting and enhancing the reputation of the high office lies with the person who holds the office.
During Oli’s tenure, the Office of the President was heavily criticised for acting like the executive’s puppet.
President Bhandari was clearly working extra hours on May 21, when she endorsed the Oli government’s House dissolution move. As per the notice of the Office of the President, the House dissolution recommendation was approved in the wee hours of around 2am on May 22.
Even the Oli government’s earlier House dissolution on December 20 was approved at a lightning speed. So were the ordinances to amend the Political Parties Act-2017 and the Constitutional Council Act-2010 on April 20 and December 15 last year. The Oli government had to introduce yet another ordinance to amend the Constitutional Council Act-2010 on May 4, as six months had elapsed without the ordinance being tabled in Parliament. The President would not take even an hour to approve it.
Observers say the question is not why Bhandari took a day to approve the ordinance brought by Deuba, as Deuba’s move is as wrong as Oli’s. The point is the constitution does not bar a sitting President from using his/her conscience while taking a decision on a recommendation sent by the government, according to them.
Mohan Acharya, a constitutional lawyer, said what Deuba has done by bringing the ordinance is out and out wrong just as it was wrong on the part of Oli to introduce the ordinance.
“Now it does not matter whether the President does it swiftly or takes time,” Acharya told the Post. “The President actually had set a wrong precedent by swiftly approving every recommendation of the Oli government.”
According to Acharya, the President does hold the right to study any recommendation by the executive and consult experts before promulgating it.
“Had the President in the past not given the nod to every move of the Oli government and had she asked the executive to reconsider, the situation would have been different,” said Acharya. “It’s not just about an ordinance or two, or this and that recommendation for that matter. After all, it needs a collective effort to establish the rule of law, strengthen the system and make democracy stronger.”