An ordinance is issued when Parliament is not in session—to provide legal facilitation to the issues of national importance becomes inevitable. It is brought in extenuating circumstances and emergencies.

“As the rule of law is yet to mature in our country and the laws remain unregulated in many places, urgent steps need to be taken at times. However, it is always better to engage Parliament in law-making,” said Bipin Adhikari, a constitutional expert. “Ordinances should be issued only when not doing so would be disastrous and it should be turned into a full-fledged law, within six months,” he said.

The provision of the ordinance is for emergencies, when legal facilitation becomes absolutely necessary. However, had that been the case in Nepal, there would have been nothing to worry about.

After the promulgation of a new constitution in 2015, the Article 114 provision of ordinance has been used as a tool to extract political and legal benefits with parties and leaders in power seeking to misuse it. They have been issuing ordinances for their vested interests, even if that means violating ethical codes.

After the 2017 elections that were the first test of public will post-constitution, the governments of neither KP Sharma Oli nor Sher Bahadur Deuba used ordinances judiciously.

A snapshot of controversial ordinances

The Oli-led government was heavily criticised for issuing ordinances with malicious intent.

On December 15, 2020, Oli called a meeting of the Constitutional Council which lacked a quorum as then-Speaker Agni Prasad Sapkota and then-opposition leader Sher Bahadur Deuba remained absent. The same afternoon, the government issued an ordinance to amend the Constitutional Council Act (Functions, Duties and Procedures) 2010, which President Bidya Devi Bhandari quickly signed.

Through the ordinance, the Oli government amended a provision of the Act that stated that "the majority of the Council members can hold the meeting", whereas the original provision of the Act said that “five of the six members must be present for a meeting to be convened”.

The intent behind Oli’s move to tweak the law was to appoint members in constitutional bodies which he did unilaterally, courting controversy.

On December 20, Oli dissolved the House which was later reinstated by the Supreme Court on February 23, 2021. But as the reinstated House failed to endorse the ordinance, Oli again brought it on May 4 and made more appointments.

And that was not the end of the ordinance saga.

Oli dissolved the House for a second time on May 22. The next day, he issued an ordinance related to citizenship, in a bid to get Madhesi parties’ support to shore up his government that was in a crisis due to a division within his party. His attempt to use the citizenship ordinance for his political gains failed as the top court barred the ordinance process, stating that it had political motives.

Oli’s caretaker government also brought the budget through an ordinance on May 29. The move got blows of criticism from the intelligentsia.

On July 13, Nepali Congress President Sher Bahadur Deuba replaced Oli as prime minister. A majority of lawmakers ousted Oli, citing his unconstitutional moves such as House dissolutions and constitutional appointments.

The Deuba government, which came up to counter Oli’s wrongdoings, however, did nothing different.

In a bid to help lawmakers split a party and form a new force, the Sher Bahadur Deuba government issued an ordinance on August 18, 2021 to amend the Political Parties Act-2017. The move came just a month after he took office as prime minister.

The ordinance was introduced to reduce the requirements of 40 percent parliamentary party members and 40 percent central committee members to 20 percent for splitting a party.

It was Nepali Congress and other parties of the Congress-led coalition that strongly protested when the Oli government introduced an ordinance to amend the same Act. Oli wanted to tweak the provision of 40 percent requirement in both the party central committee and parliamentary party to ‘either in the central committee’ or in ‘its parliamentary party’. The attempt was foiled after widespread criticism.

Following Deuba's move, the dissident camp in CPN-UML formed the CPN (Unified Socialist) and in Janata Samajbadi Party, Mahantha Thakur spearheaded the formation of the Loktantrik Samajbadi Party. After the splits, the ordinance was invalidated.

In the latest instance, amid raging controversy, the government forwarded an ordinance to amend the National Criminal Procedure (Code) Act, 20 to the President’s Office on December 12, 2022.

A Cabinet meeting on December 11 decided to bring the ordinance to pave the way for withdrawing cases against Resham Chaudhary—the alleged ‘mastermind’ of the 2015 Tikapur incident in which eight people including a toddler were killed—and some leaders and cadres of the CK Raut-led Janamat Party and Netra Bikram Chand-led Nepal Communist Party.

President Bhandari is examining the ordinance which becomes the law with her seal. People from different quarters have criticised the ordinance as a move to pardon those jailed for heinous crimes.

Experts say the wrong practice related to ordinances has remained unchecked for long.

Constitutional expert Adhikari said as the ordinance is an executive-engaged law making process, it is unsuitable in most policy matters as the issue requires intense deliberation in Parliament. “The answer to ‘why a new law’ is needed is crucial while resorting to an ordinance. But in Nepal, the leaders' ordinance motives have remained either unanswered or are murky,” he said. “Once an ordinance serves the vested interest, it gets invalidated, which is an absolutely wrong practice.”

Another constitutional expert Bhimarjun Acharya said the essence of Nepal’s democracy is Parliament commands the executive and people command Parliament. “The existing trend of issuing ordinances hints that the dominance of the executive over Parliament is growing. That also means downgrading supremacy of law and a lack of accountability,” he said.

Right but lingered

Did all the ordinances issued so far have had a malicious intent or an underlying vested interest?

No, say the legal experts. But the problem is even if the ordinances had the right intent and were meant to serve the needs of the day, they have lingered on for a long time.

On December 22, 2021, Parliament endorsed the Acid and Other Harmful Chemicals (Regulation) Ordinance. It was endorsed amid demands for severe punishments to the acid attack culprits and proper compensation for the victims as the acid attack cases had begun to surge.

The Oli government had also brought the ordinance earlier, but that could not be endorsed. The ordinance had provisions for severe punishment for the perpetrators and also carried the guarantee of justice, treatment, education and employment for the victims.

Even the Deuba government could not turn the ordinance into a law in a single attempt. The ordinance was invalidated in February 2022, as it failed to become law by the deadline.

The Oli government had brought the ordinance to amend some acts against sexual violence on December 6, 2020. After it wasn’t endorsed, it again issued the same ordinance on May 4, 2021.

As the Oli administration failed to turn the ordinance into law, the Deuba government again issued it on December 1, 2021. Failed this time too, the ordinance was again brought on April 5, 2022.

The President on July 15, endorsed 13 bills, including those related to acid attack and sexual violence.

“Repeatedly issuing the same ordinance is also not right. The government should not act as Parliament by making laws,” said Adhikari. “Also, if the government is to bring an ordinance, it should have the commitment to transparency and face the parliamentary processes and its political consequences. ”

A question mark

Article 114 (1) of the Constitution of Nepal states, in case, at any time, except when both Houses of the Federal Parliament are in session, circumstances exist which render it necessary to take immediate action, the President may, on recommendation of the Council of Ministers, promulgate an Ordinance. Article 114 (2) states, “The Ordinance promulgated pursuant to clause (1) shall have the same force and effect as an Act. Provided that every such Ordinance, - (a) Shall be tabled at the session of both Houses of the federal parliament held after the promulgation, and in case not adopted by both Houses, it shall, ipso facto, cease to be effective; (b) May be repealed at any time by the President; and (c) Shall, unless rendered ineffective or repealed pursuant to sub-clause (a) or (b), ipso facto cease to be effective at the expiration of sixty days after the day on which a meeting of both Houses is held.”

But given that many cases of misuse of the ordinance have surfaced time and again, a question about its usefulness has also emerged.

Many ordinances have been brought by different governments to serve their vested interests. “I think the idea of issuing ordinances in itself is redundant in the context of Nepal,” said Acharya.

While explaining the reason, he said: “There cannot be a gap of more than six months in the House session. It means that our Parliament will be in session most of the time. If ordinances are meant to be brought only when there are no sessions of the two Houses and in extraordinary cases, I don’t see that it has much use.”