Ordinance on political parties repealed, but moral questions remainExperts say the way the government has acted, in introducing and repealing the ordinance, it has clearly misused power and undermined the rule of law.
After hemming and hawing for weeks, the government on Monday recommended that the President repeal the ordinance to amend the Political Parties Act, which had become an albatross around Prime Minister Sher Bahadur Deuba’s neck.
Accordingly, President Bidya Devi Bhandari repealed the Ordinance on Political Parties (Second Amendment)-2078.
The ordinance promulgated on August 18 had led to splits in two parties–the CPN-UML and the Janata Samajbadi Party. Madhav Kumar Nepal of the UML and Mahantha Thakur of the Janata Samajbadi Party on August 26 registered their parties–CPN (Unified Socialist) and Loktantrik Samajbadi Party.
“President Bidya Devi Bhandari as per the decision of the Council of Ministers on 2078/6/11 [ Sept 21, 2021] and recommendation of the prime minister has repealed the Ordinance on Political Parties (Second Amendment)-2078 as per Clause 2(b) of Article 114 of the Constitution of Nepal,” the Office of the President said in a statement on Monday evening.
The ordinance was contested since the very first day, as critics had said Prime Minister Deuba introduced it with a malafide intention. The ordinance was introduced a day after the government prorogued the House of Representatives on August 16.
The UML had taken serious exception to the ordinance saying it was aimed at splitting the party. The amended provisions in the Political Parties Act meant any group within a party with 20 percent members of the Central Committee or the Parliamentary Party could split and form a new party.
Before the ordinance amended the Political Parties Act, dissident groups wishing to split a party needed to command support of 40 percent members in both the Central Committee and the Parliamentary Party.
The Janata Samajbadi Party had been demanding that the government repeal the ordinance before it could join the government, and this precondition had put Deuba in a difficult position. The CPN (Unified Socialist), however, wanted the continuation of the ordinance, as a court case was pending.
Repealing the ordinance now paves the way for Deuba to expand his Cabinet, but this has raised some questions and experts say the bigger question is moral rather than legal.
According to legal and constitutional experts, the government has not done anything illegal, but whether repealing the ordinance after the “intended purpose” is served poses moral questions for the ruling coalition.
“The President can repeal the ordinance anytime on the recommendation of the Council of Ministers. But the major concern is whether the executive is abiding by the rule of law,” said Bhimarjun Acharya, an expert on constitutional affairs. “Such issuance and withdrawal [of ordinances] are blatant misuse of power. Such actions set a bad precedent.”
Since the actions taken as per the ordinance would stay, the Deuba government remains in a comfortable position.
Currently, Deuba has support of 61 lawmakers of his party, 49 from the Communist Party of Nepal (Maoist Centre), 24 from the CPN (Unified Socialist), 21 from the Janata Samajbadi Party and one from the Rastriya Janamorcha.
When erstwhile prime minister KP Sharma Oli introduced an ordinance to amend the Political Parties Act in April last year, he had received widespread criticism. Oli, however, tweaked the provisions slightly, by changing the provision of “or” from “and” to the existing provision. As per the ordinance issued by Oli, dissident groups wishing to split a party needed to command support of 40 percent members in the Central Committee “or” the Parliamentary Party.
The Oli government had withdrawn the ordinance after five days after massive criticism.
The Deuba government, however, went many steps ahead, as it not only changed the “and” provision to “or” it brought down the requirement of the number of members in the Central Committee or Parliamentary Party to half.
Observers say Deuba is no different from Oli when it comes to not abiding by the rule of law.
Ever since it was formed on July 13, the Deuba government has not been able to show anything on the governance front. Deuba replacing Oli was largely seen as a change in the sense that the Oli government was bent on trampling upon the system and undermining the constitution.
Experts say Deuba is now doing what Oli was doing.
According to Chandra Kanta Gyawali, a senior advocate who specialises on constitutional law, the best way would have been to bring a replacement bill of the ordinance making some changes, if needed.
“They could have also waited for 60 days for the ordinance to expire so that the previous provisions would have automatically come into effect,” Gyawali told the Post. “But it seems the coalition partners were not prepared to wait for that long. So they decided to take a shortcut, risking its possible legal, political and moral consequences.”
Immediately after the Deuba government introduced the ordinance, it was challenged in the Supreme Court.
Advocates Shreekant Baral, Prabesh KC, Nikesh Kumar Lamsal, Shakuntala Bhusal, Anusha Aryal and Arjun Aryal had filed petitions on August 19, a day after the ordinance was promulgated, demanding an order to scrap the ordinance and actions taken based on it.
Verdict on the petitions is pending.
On Friday, the Constitutional Bench issued a show cause notice to the government, asking it to provide clarifications why it introduced the ordinance. It refused to give an interim order to the government as demanded by the petitioners as the ordinance had already been presented before the House.
Legal experts say there was no basis for the court to issue an interim order as the ordinance had already been presented before the House.
But before furnishing the clarification, for which there was no deadline set, the government on Monday decided to repeal the ordinance.
With regards to an earlier ordinance related to Citizenship Act brought by the esrtwhile Oli government, the Supreme Court, however, had observed that ordinances “must not be brought undermining the inherent right of the federal parliament.” The court had quashed the ordinance.
Legal experts say since the government itself has now repealed the ordinance to amend the Political Parties Act, it is up to the court what kind of ruling it makes on the petitions against the ordinance
“I don’t think the Supreme Court will invalidate the two parties which were formed based on the provisions of the ordinance,” said Gyawali, the expert on constitutional matters. “The Supreme Court is the ultimate arbiter. It’s up to it to interpret these issues.”