No law on oath raises questions over rulers’ adherence to rule of lawAn ordinance related to the administration of oaths lapsed on September 15, creating a legal vacuum.
Prime Minister Sher Bahadur Deuba is working to give full shape to his Cabinet within a few days after a major obstruction to his bid to expand the Council of Ministers ended with the repealment of the ordinance on political parties on Tuesday.
But with an ordinance related to the administration of oath brought by the past government also lapsing on September 15, Deuba’s bid to induct ministers could be affected as they cannot be sworn in for the lack of a law.
On Tuesday, Bishal Neupane, an advocate, filed a petition at the Supreme Court claiming that the administration of oath to the newly appointed Foreign Minister Narayan Khadka was unconstitutional because there is no law on oath-taking following the expiry of the ordinance on September 15.
“A petition has been registered at the Supreme Court claiming that the oath of the foreign minister was unconstitutional,” said Baburam Dahal, spokesperson for the Supreme Court.
On September 22, President Bidya Devi Bhandari administered the oath of office and secrecy to Foreign Minister Khadka. And advocate Neupane filed the petition claiming that the oath taken without the legal basis should be annulled until a new law is enacted.
He has cited Article 80 of the constitution, which states that the prime minister, deputy prime minister and ministers should take the oath of office and secrecy before the President, and ministers of state and assistant ministers should take the oath before the prime minister, as provided for in the federal law, prior to assuming their respective offices.
However, currently there is no law related to the oath of the prime minister, deputy prime minister and ministers.
An ordinance related to oath was one of the 14 ordinances that ceased to exist since the midnight of September 15 by virtue of failing to secure parliamentary endorsement.
With the expiry of the ordinance, currently there is no law regarding the administration of oaths. The government can end this uncertainty by introducing a bill in parliament. But Khadka was sworn in amid a legal vacuum.
“Since the oath of Narayan Khadka was administered without any legal basis, as the constitution has stated ‘as per the federal law’, the oath [taken by the foreign minister] is unconstitutional and it must be scrapped,” advocate Neupane has said in his petition. “The oath should be taken as per the new law after the government brings one.”
Deuba has been preparing to expand his Cabinet by inducting ministers from coalition partners—the Communist Party of Nepal (Maoist Centre), CPN (Unified Socialist) and the Janata Samajbadi Party.
A court order to scrap Khadka’s oath would mean there will be no meaning of appointing ministers, as without taking the oath, they cannot assume their respective offices.
The only way to enact a law on oath-taking is presenting a bill before Parliament. According to officials of the Parliament Secretariat, if a bill is introduced, it takes at least a month to become a law.
On May 14, when KP Sharma Oli took the oath after being reappointed as prime minister, he skipped the part where he had to ‘commit’ to serving the people by saying ‘that is not necessary’ and sparked public criticism.
Chandra Kanta Gyawali, an advocate who specialises on constitutional law, challenged Oli’s oath-taking, arguing that the swearing-in was invalid because there was no ‘federal law’ on oath-taking as required by the constitution.
According to Gyawali, the court issued a show cause notice to the government but refused to issue an interim order on May 18. The petition became irrelevant after the government brought an ordinance on oath on May 20. A day later, Oli dissolved the House. After the Supreme Court revived the House on July 12, the ordinance was presented when it convened its first meeting on July 18.
But after the government failed to come up with a replacement bill it was annulled on September 15 creating a legal vacuum.
Since there was no law on oath-taking ever since the new constitution was promulgated, the ordinance brought by the erstwhile Oli government said that all the oaths taken by the persons appointed, elected and nominated for taking responsibility of public offices would be assumed to have taken as per the ordinance.
But now the legal basis of all those oaths taken based on that ordinance can come into question.
Nepal held its first general elections in November-December 2018 under the new constitution promulgated on September 20, 2015. The first meeting of the first Parliament elected as per the new constitution was convened on March 5, 2018.
As per the constitution, around 110 federal laws were to be enacted and as many as 174 laws were to be amended within a year since the commencement of the first meeting of the federal parliament. The constitution made it mandatory that laws concerning fundamental rights of the citizens should be drafted within three years since the promulgation of the constitution. While the government fulfilled other obligations, a law regarding oath-taking failed to get lawmakers’ attention.
Observers say failure to introduce a law on oath-taking is indicative of Nepal’s elected representatives' failure to perform their primary duty–law making.
“Oath-taking is an attestation that one is committed to rule of law and a commitment to good governance, people and the country,” said Gyawali, the advocate. “Not bringing a law on oath-taking itself is a violation of law. “An oath taken without the law has no validity.”
Tika Ram Bhattarai, also an advocate, said the country not having a law on oath also indicates how dysfunctional the country’s institutions have become.
“While the rulers have invariably failed to show commitment to rule of law, institutions that are in place to carry out specific duties too have failed,” said Bhattarai. “There is the Office of the Attorney General, which is the official legal counsel to the government, and there is the Ministry of Law and Parliamentary Affairs whose job is to constantly work on laws. But I wonder how come they also never made the authorities aware of the fact that the country does not have a law on the administration of oath.”
According to Bhattarai, the government now needs to put in place some legal provisions to administer oaths to new ministers.
“It can bring a bill, but it takes time for it to become a law,” said Bhattarai. “Or it has to bring an ordinance again for which the House needs to be prorogued.”