No regard for rule of law as Nepali state runs on ad hocismOrdinances are allowed by constitution but governments are issuing them as per their wish, not paying attention to their timely approval, leading to legal vacuum.
Around a dozen ordinances introduced by the government became ineffective from September 16, as they failed to get the approval from the Parliament within the constitutional deadline.
The government, however, has not communicated to the people about the lapsed ordinances. Nor has it informed the people about the governing laws of the country in the absence of those ordinances. While failure to approve ordinances to amend laws leads to automatic application of the previous laws, some ordinances are designed to respond to a certain situation, and their invalidity creates a legal vacuum.
Phanindra Gautam, spokesperson for the Ministry of Law, Justice and Parliamentary Affairs, said the government doesn’t issue any notice or circular when the ordinances turn invalid.
“[We assume] the information regarding lapsed ordinances gets disseminated through the news media or other media platforms,” he told the Post. “The ordinances became defunct as per the constitutional provisions. We believe people know about the constitutional provisions.”
The question, however, is not only about whether the people are aware of such events. Experts say serious legal questions could arise if any activity by any government is carried out under an envisioned provision which fails to get enacted.
The Covid-19 Crisis Management Ordinance 2020 is a case in point.
The government on May 20 issued the Covid-19 Crisis Management Ordinance 2020, which was presented in Parliament on July 18. As the constitutional deadline for its parliamentary passage has elapsed, any activity carried out under the ordinance is illegal.
Ever since the Covid-19 pandemic hit the country and started claiming lives, the Nepal Army was entrusted with the task of managing the bodies of those who died of the virus.
The ordinance then created the Covid-19 Crisis Management Centre, called CCMC, with a larger mandate to respond to the pandemic. The army’s mobilization to manage the bodies was overseen by the CCMC.
Officials at the CCMC and Nepal Army admit that the activities they are carrying out, including the management of the bodies of those who died of the virus, don’t fall under any legal purview.
“We are continuing with our responsibility in coordination with the CCMC,” Brigadier General Santosh Ballave Poudyal, Nepal Army spokesperson, told the Post. “I believe the CCMC is the right place to ask about the present legal challenge.”
Balananda Sharma, chief executive officer at the CCMC, said that since Covid-19 is a serious health crisis, they have been continuing to do what they were doing despite the fact that the agency has no legal existence.
“We are working on humanitarian grounds,” said Sharma. “Yes, the Army had sought to know whether to continue their work. I had requested them to continue,” added Sharma, a retired lieutenant general.
Sharma admitted the legal vacuum but said they cannot just raise their hands.
“We cannot take a lack of law as an excuse to stop dead body management or start barring Nepalis stranded abroad from entering the country,” Sharma told the Post. “I am not in a position to direct any agencies legally. They are functioning only on humanitarian grounds.”
With the CCMC Ordinance 2020 failing to get parliamentary approval, all legal frameworks related to travel too have become invalid.
The country is currently also facing a financial shutdown because the replacement bill for the budget ordinance too is stuck in the lower house. Experts have already warned of a catastrophe as the government cannot spend from the state coffers and there is no legal framework to address the Covid-19 situation.
Observers say the situation illustrates a lack of seriousness on the part of the government as it knew very well that a number of ordinances were awaiting parliamentary approval.
Yet another ordinance that has become non-functional is Acid and Other Fatal Chemicals (Regulation) Ordinance 2020 to revise some provisions in the Criminal Codes and Criminal Procedure. It was aimed at deterring acid attacks, which have been growing in recent years, in what is yet another manifestation of violence against women.
The erstwhile KP Sharma Oli government in September last year issued the ordinance. It was hailed as a positive step as it doubled the jail term for acid attackers to 20 years and significantly increased the fine to a maximum of Rs 1 million which would go to the acid attack survivor. It also had imposed restrictions on open sale of acid.
Officials say those accused in acid attacks that occurred before Wednesday [September 15] would face action as per the ordinance, but the older provisions that were prevalent before the ordinances were promulgated will be applicable for the acid attack cases reported after Thursday [September 16].
“Even if the ordinances have lost their validity, actions will be taken based on them in the cases committed before Thursday,” said Gautam.
Another crucial ordinance issued by the Oli government was about an amendment to Some Nepal Acts to increase the penalty in cases related to rape.
The ordinance had provisions of six months to three years of jail term and a fine of Rs 30,000 for those who mediate to settle a rape case outside the court. Even those inciting mediation and putting pressure for out-of-court settlement of rape cases can face criminal charges.
If the victim is between 14 and 16 years old, the jail term had been increased to 12-16 years from the existing 12-14 years. If the victim is between 16 and 18 years old, the rapist could get 10-14 years’ jail instead of 10-12 years. Similarly, if the victim is above 18 years, the perpetrator would be sentenced to 10-12 years in jail instead of the previous provision of 7-10 years.
Gautam, the spokesman for the Law Ministry, said the government either has to issue new ordinances for the lapsed ordinances or present new bills in Parliament.
But unless either of the two actions are taken, there are no legal frameworks as envisioned by the ordinances.
Sharma, the chief executive at the now defunct CCMC, said that the government knew that the endorsement of the ordinance was not easy due to tussles between the UML and the Speaker.
“The present vacuum could have been avoided if the government was serious about it,” said Sharma.
Legal experts say the present scenario is the result of Nepali political parties’ failure to adhere to rule of law and their lack of seriousness towards the legal systems. Nepali parties have developed a tendency that they are above the law and the country can be run without laws, according to them.
Dinesh Tripathi, a senior advocate who specializes in constitutional law, said any activity carried out without any legal framework can be challenged in the Supreme Court.
“We know the CCMC has a crucial role to play in the fight against the Covid-19 pandemic. So it’s the government’s duty to put laws in place to help the agency carry out its duty effectively,” Tripathi told the Post. “Technically, the CCMC cannot take any decision or carry out any activity. Every action can be challenged in the court.”