Parties’ move to keep House working even after declaring polls raises questionsExperts say with elections announced, the caretaker government cannot present bills in Parliament, as some new laws may lead to policy decisions.
With the announcement of the date for general and provincial elections, the Sher Bahadur Deuba administration has turned into a caretaker government, with authority to carry out only day-to-day administrative works.
A caretaker Cabinet cannot take decisions that have lasting implications.
But despite the elections declared, which are meant to elect a new House of Representatives, the current House, according to ruling parties, will remain in place at least until the nomination filing day. The main opposition CPN-UML has not disabused the ruling parties of the idea.
According to Nepali Congress lawmakers, the House will function for at least two more months to discuss and endorse some pending bills. The government is planning to register some new bills, including those on federal education and higher education.
Constitutional experts say preparing bills is a policy decision and when they get endorsed from Parliament, they become laws that have long-term implications.
Amid controversy over keeping the House intact and functional even after announcing the elections, questions have now arisen whether a caretaker government can push new bills and the current House should enact laws.
Ganesh Datta Bhatta, a former associate professor at Nepal Law Campus, said the government can take no decisions other than addressing day-to-day issues, carrying out regular administrative works and doing its prime duty—holding the elections successfully.
“If new laws are enacted, new policy decisions are needed to implement them, which a caretaker government is not authorised to do,” Bhatta told the Post. “Presenting the bills by a caretaker government is wrong. The House shouldn’t be functioning after the election date is announced.”
Political parties have not debated whether the House should function or not. They have not only agreed to keep it at least until Dashain, some agendas have already been set for the next meeting, scheduled for Sunday. Meetings have been scheduled continuously.
The federal parliament has 49 bills to endorse, some of them pending for the last four years or so.
The government is preparing to push bills related to the federal civil service, amendment to the Enforced Disappearances Enquiry, Truth and Reconciliation Act and special service through the current House.
Endorsement of the bills will oblige the government to come up with policy decisions to enforce the laws.
The bill to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Act, for instance, envisions a separate Special Court to hear cases of serious human rights violations committed during the Maoist insurgency (1996-2006).
Officials too need to be appointed to the Commission of Investigation on Enforced Disappeared Persons and the Truth and Reconciliation Commission.
The elections mark a turning point in Nepal's democratic politics, as periodic polls are being held for the first time since the promulgation of the new constitution in 2015, with experts saying they help strengthen the federal democratic republic.
However, a lack of clarity in the constitution has created some confusion about the tenure of the House. Though the constitution says the House has a five-year tenure, unless dissolved earlier, it does not specify the start and end of the term.
Politicians should have taken a studied decision so as to set a precedent for the future instead of making a decision on the House term randomly, which observers say defies logic.
Constitutional experts say presenting the bills in Parliament is against the principle that a caretaker government cannot take policy decisions, according to constitutional experts.
“Continuing the House business even after announcing the election dates contradicts the principle that a caretaker government cannot take policy decisions. Preparing the bills and laws is making policy decisions,” Dinesh Tripathi, chairperson of the Constitutional Lawyers’ Forum, told the Post. “The House should not function now.”
In some countries, parties abide by caretaker conventions, setting the rules for how governments should function in the lead up to the elections and until the result is out and a new government is appointed. The rationale behind not allowing a caretaker government to take policy decisions or decisions that have long-term implementation process is to stop an outgoing government, potentially, from binding a future government.
Such decisions may include important appointments, significant contracts and undertakings involving huge amounts of money, several appointments, and those that are likely to commit an incoming government.
Experts say there may not be any hard and fast rules but with practice and politicians’ commitments rules evolve.
“In the lack of constitutional clarity, what the present government decides will become a precedent. The same practice will be followed after five years,” said Bhatta. “This caretaker government, therefore, shouldn’t be presenting bills in Parliament.”
Some see ulterior motives behind keeping the House functional even after declaring the elections, largely at the behest of the CPN (Maoist Centre) and other coalition partners.
As long as the House remains, there will be chances for bringing a no-confidence motion against the current prime minister.
Bipin Adhikari, a professor at Kathmandu University School of Law, says he thinks the lower house will continue until there is a broad seat-sharing arrangement among the ruling parties for the upcoming elections.
“I believe the House is continuing because the coalition partners pressured Prime Minister Deuba and his party, the Nepali Congress. The government has adopted the rule of convenience by ignoring the democratic practice,” he told the Post. “As long as the House continues, there are chances that the government uses it, which could be by introducing the bills, to appease voters.”
Seat-sharing is easier said than done for the five coalition partners and two constituent parties—the Maoist Centre and the CPN (Unified Socialist)—are even considering a sub-alliance.
Adhikari says he believes that the House will end once the five parties seal a deal on seat-sharing.
The ruling parties have formed an 11-member committee to develop the criteria for seat-sharing within two weeks. Besides, they have agreed to finalise seat-sharing by the third week of August.
Some experts, however, say election declaration and House function should be viewed in different lights.
Mohan Lal Acharya, a constitutional lawyer, said the government and the parliament are two separate organs of the state with their own roles and responsibilities prescribed by the constitution.
“The government and Parliament are different entities. Therefore, the functions of the government and the parliament should be viewed differently,” Acharya told the Post. “However, unlike in the presidential form of governance, the government and Parliament are interlinked in the parliamentary system like ours.”
According to Acharya, the complexity should have been resolved politically by holding extensive discussions among the parties so as to set a good precedent for the future.
Raju Chapagain, also a constitutional lawyer, doesn’t find anything wrong in continuing with the House despite declaring elections, because the constitution says it shall have a term of five years.
“The only confusion at the point is about the cut-off point which is a political issue to be resolved by the parties,” he told the Post. “The bills in the House can be discussed and tabled for endorsement. However, the government should be tabling only those bills that need to be endorsed immediately.”