On April 21, Prime Minister Balendra Shah convened a Cabinet meeting that recommended President Ramchandra Paudel summon a joint session of the federal parliament on April 30. After receiving the recommendation late that night, the President formally called the session the following day, scheduling it for 2 pm on April 30.

Just two days later, on April 23, Shah called another Cabinet meeting. This time, the Cabinet recommended that the President prorogue the parliamentary session before it had even convened. Paudel approved the recommendation the same day.

Four days later, on April 27, the government began introducing ordinances, starting with two related to the Constitutional Council and the cooperatives sector. By May 4, it had recommended a total of eight ordinances to the President.

Although the constitution empowers the government to issue ordinances, the Shah administration’s move triggered widespread criticism. Parties that had themselves faced accusations of governing through ordinances in the past accused the government of attempting to bypass Parliament and rule by ordinance.

Constitutional experts argue that the criticism is directed less at the ordinances themselves than at the government’s decision to postpone an already summoned parliamentary session in order to introduce them. They also point out that the ruling Rastriya Swatantra Party, now leading the government, had previously been a vocal critic of the ordinance route.

According to legal experts, the problem lies not in the constitutional provision itself but in the growing practice of suspending or avoiding parliamentary proceedings to promulgate ordinances. They say what was intended as an exceptional constitutional mechanism has increasingly become a routine legislative shortcut.

Article 114 of the constitution allows the President to promulgate an ordinance, on the recommendation of the Council of Ministers, when both houses of the federal parliament are not in session and circumstances require immediate action. Such an ordinance carries the same legal force as an Act, but must be tabled before both houses once Parliament reconvenes. It automatically loses effect if it is not endorsed.

Whether ordinances are issued out of genuine necessity or executive convenience, however, has long remained contested.

The latest controversy has also been fuelled by the government’s commanding majority in Parliament. Critics question why an administration with sufficient numbers to pass legislation through the normal parliamentary process would choose to rely on ordinances. At the same time, supporters argue that every government is, by definition, formed with a parliamentary majority and should therefore be able to secure the passage of its legislation through Parliament.

Balaram KC, former justice at the Supreme Court, said the ordinance power is most vulnerable to misuse when it is used to amend laws governing institutions such as the Constitutional Council or political parties.

“Parliament meets only twice a year. When it is not in session, lawmakers return to their constituencies. The constitution provides the executive with the power to issue ordinances to address urgent legal needs that arise during such periods. Similar provisions exist in other countries,” KC said.

“What happened here was that Parliament was shut one day and ordinances were issued the next. That is an abuse of power. Leaders who have little regard for the rule of law are the ones who resort to such actions.”

He added that political parties have consistently adopted double standards on ordinances, supporting or opposing them depending on whether they are in government or in opposition.

Before the Gen Z protests brought down the coalition government of the Nepali Congress and the CPN-UML, the alliance between Parliament’s two largest parties had been widely debated. Yet there was little public opposition when that government introduced ordinances. Instead, its supporters argued that the measures were necessary to remove legal obstacles and speed up development projects.

Legal experts say governments rarely explain why the constitutional threshold for issuing an ordinance has been met. Nepal’s political history contains numerous examples of ordinances introduced to serve immediate political interests rather than genuine constitutional necessity.

Senior advocate Tikaram Bhattarai said successive governments have repeatedly stretched the constitutional limits of executive authority.

“Whether it is a single-party government or a coalition, the executive always commands a parliamentary majority. A government backed by a majority should have no difficulty passing bills,” he said.

“Actually, a government that cannot secure parliamentary approval for its ordinances loses even the moral authority to remain in office.”

The use of ordinances in Nepal dates back to the Constitution introduced in 1959. According to a 2022 study by the Federal Parliament Secretariat, the first five ordinances were promulgated on February 28, 1960, under the government led by BP Koirala. They dealt with business profits and salaries tax, property tax, the abolition of state courts, the Supreme Court Act and land tax.

The study shows that 182 ordinances were issued between the promulgation of the 1990 Constitution and 2006. Between 1991 and 2002, successive governments introduced 30 ordinances. Their use increased sharply during the years of political instability and direct rule by the king in the monarchical era, with 27 ordinances issued in 2003, 33 in 2004 and 79 in 2005. The trend illustrates how governments relied more heavily on ordinances during periods of political crisis and weakened parliamentary institutions.

After the Interim Constitution came into force in 2007, 39 ordinances were promulgated before the new Constitution was adopted in 2015. Under the current Constitution, no ordinances were issued in 2015, 2016 or 2019. The number rose to three in 2017, five in 2018, 11 in 2020, 28 in 2021 and two in 2022.

The Parliament Secretariat’s report concludes that although the constitution envisages ordinances as an exceptional measure for urgent situations, governments have increasingly relied on them even when legislation could have been enacted through the ordinary parliamentary process.

The report also notes that introducing the national budget through ordinances has undermined the spirit of the constitution. Since the current constitution came into force, budgets were introduced through ordinances in 2015, 2016, 2019 and 2021. Before that, budget ordinances were issued in 1994, 1995, 2002, 2003, 2005, 2012 and 2013. According to the report, political transitions, parliamentary deadlock and the dissolution of Parliament have been the main factors behind the repeated use of budget ordinances.

According to KC, the former top court justice, much depends on the intentions of those in power. He said there are no legal safeguards against the misuse of ordinances beyond ensuring that principled leaders committed to constitutional values occupy high office.

“When an honest leader is at the helm, this provision is exceptionally useful. But when state power falls into the hands of someone who disregards the rule of law, it becomes a curse,” KC said.

Globally, ordinances are generally treated as an exceptional legislative mechanism. In established democracies such as the United Kingdom and the United States, heads of state no longer exercise comparable ordinance-making powers. In India, Pakistan and Bangladesh, however, constitutions permit the President to promulgate ordinances when Parliament is not in session. Although the mechanism is frequently used in India, the Indian Supreme Court has repeatedly criticised the practice, describing repeated re-promulgation of ordinances in landmark judgments as a “fraud on the constitution”.

Advocate Semanta Dahal said governments generally resort to ordinances in three situations.

“The first is to secure immediate political advantage, weaken opposition parties or rival factions, or bring key state institutions under executive influence before the measures can be debated in Parliament,” Dahal said. “The second is when the executive lacks confidence that a bill can be passed within the timeframe it desires.”

The third scenario, he said, is different.

“Sometimes ordinances are introduced not to undermine political rivals or dominate state institutions, but to fast-track reforms that have remained stalled for years. However, such ordinances rarely produce lasting and sustainable reforms.”

According to Dahal, the first two scenarios reflect political bad faith and undermine the constitutional purpose of ordinances.

“Treating an ordinance as the executive equivalent of an executive order is, in fact, an abuse of executive power,” he said.

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Political parties and the Constitutional Council

Successive governments have most frequently used ordinances to amend laws governing political parties and the Constitutional Council.

Since 2007, the Political Parties Act has repeatedly been altered to reshape political alliances or preserve governing coalitions.

Nepal’s first anti-defection law, introduced in 1997, required a faction to secure the support of 40 percent of both the parliamentary party and the central committee to split a political party. Under that provision, the CPN-UML split in 1998, followed by a split in the Nepali Congress in 2002. After the 2008 Constituent Assembly election, party splits became increasingly common.

Between 2008 and 2015, frequent defections contributed to repeated changes of government. To curb political instability, the law was tightened in 2017. The Political Parties Act, 2017 retained the requirement that breakaway factions secure the support of 40 percent of both the parliamentary party and the central committee.

That safeguard was first weakened by then prime minister KP Sharma Oli.

On April 20, 2020, Oli introduced an ordinance amending the Act to allow a party to split with the support of 40 percent in either the parliamentary party or the central committee.

The amendment came amid internal disputes within the then ruling Nepal Communist Party and was widely seen as an attempt to split the Upendra Yadav-led Samajbadi Party and the Mahantha Thakur-led Rastriya Janata Party. Instead, the two parties merged. The ordinance was repealed on April 24, 2020, on the recommendation of the Cabinet.

Oli’s successor, Sher Bahadur Deuba, went further.

On August 17, 2021, his government issued another ordinance reducing the threshold to 20 percent support in either the parliamentary party or the central committee.

The amendment enabled a faction led by Madhav Kumar Nepal to split from the CPN-UML and form the CPN (Unified Socialist). Following its later merger with the then CPN (Maoist Centre), the party is now part of the Nepali Communist Party (NCP).

The same ordinance also facilitated the split of the Upendra Yadav-led Janata Samajbadi Party Nepal, leading to the formation of the Loktantrik Samajbadi Party under Mahantha Thakur.

After those political objectives had been achieved, the ordinance was repealed on September 27, 2021.

Repeated changes to the Constitutional Council

The Constitutional Council has also repeatedly become the subject of ordinance-based amendments.

The Council recommends appointments to constitutional bodies, including the Chief Justice of the Supreme Court, the Auditor General and other constitutional commissions established to provide institutional checks on the executive.

During his tenure, Oli twice amended the Constitutional Council Act through ordinances, on December 15, 2020, and June 13, 2021, paving the way for the recommendation of 52 office bearers to various constitutional bodies.

As the House of Representatives had been dissolved on both occasions, the appointments bypassed parliamentary hearings and became the subject of litigation before the Supreme Court.

Those ordinances amended the Constitutional Council Act to allow meetings to proceed and decisions to be taken by a simple majority of serving members.

With the post of Deputy Speaker vacant at the time, the amendment allowed the six-member Council to meet with only three members present and make decisions with the support of just two.

Successive governments have repeatedly altered the Council’s decision-making rules to overcome political deadlock or opposition boycotts.

A recurring pattern has emerged in which both the Congress and the UML criticise ordinances while in opposition but rely on the same mechanism after returning to government.

When the Congress-UML coalition assumed office, it introduced six ordinances simultaneously on July 14, 2024.

The Rastriya Swatantra Party, which entered Parliament promising to end the practices associated with Nepal’s traditional parties, adopted a similar approach after coming to power.

The Shah government amended the rules governing the Constitutional Council through an ordinance. Under the original Act, the six-member Council required the presence of five members, including the chair, to constitute a quorum, while decisions were to be taken by consensus. If consensus failed twice, decisions required a majority of the Council’s total membership.

The ordinance reduced the quorum to four members, including the chair, and allowed decisions to be taken by a majority of those present, meaning three members could make appointments.

Soon after the ordinance came into force, the Constitutional Council met and recommended a new Chief Justice.

Former justice KC believes the Supreme Court missed a crucial opportunity to curb the executive’s misuse of ordinance powers during the legal challenge to the appointment of 52 office bearers to constitutional bodies under the Oli government.

“The judiciary had an opportunity to kill three birds with one stone. First, it could have checked the blatant misuse of ordinances and sent a strong message to the executive. Second, it could have ended the manipulation of the Constitutional Council. That opportunity was lost,” KC said.

“Third, it could have invalidated appointments made without parliamentary hearings. That did not happen either.”

Although the constitution envisages ordinances as an exceptional legislative measure, Nepal has yet to develop a political culture in which governments publicly explain the constitutional necessity for bypassing Parliament before resorting to them.

Constitutional experts say that while it may be difficult to create legal restrictions that prevent misuse without limiting the executive’s ability to respond during genuine emergencies, requiring governments to publicly justify the constitutional grounds for issuing ordinances would improve accountability.

Senior advocate Tikaram Bhattarai noted that repeated amendments to the Political Parties Act and the Constitutional Council Act have largely been driven by narrow political interests.

“The changes to the Political Parties Act are primarily about retaining the governments, while amendments to the Constitutional Council Act reflect an attempt to bring independent constitutional bodies under executive influence,” he said.

Advocate Dahal shares a similar view.

He said ordinances are often used to shape appointments to the judiciary and constitutional bodies in favour of the government of the day.

“When governments fear that Parliament may not endorse their agenda, they often resort to ordinances to secure their immediate political interests,” Dahal said.

Not all ordinances, however, have been viewed negatively.

The Acid and Other Hazardous Chemical Substances (Regulation) Ordinance introduced by the Oli government in 2021 received broad public support after a series of acid attacks. It introduced stricter penalties for acid-related crimes and was widely regarded as a necessary legislative response.

Similarly, the Security of Health Workers and Health Institutions (First Amendment) Ordinance, issued in 2022, strengthened legal protections for healthcare workers against attacks while on duty.

The same year, the government also introduced an ordinance amending several Nepal Acts relating to sexual violence. Earlier, in 2018, an attempt was made to amend transitional justice laws through an ordinance relating to the Enforced Disappeared Persons Enquiry and Truth and Reconciliation Commission.

Sudarshan Khadka, coordinator of a study on the use of ordinances in Nepal and secretary of the Koshi Provincial Assembly, said ordinances are justified when an urgent legal vacuum emerges and Parliament is not expected to meet for another two or three months.

However, his research shows that governments have increasingly relied on ordinances for political and administrative convenience rather than genuine urgency.

“There have been instances where ordinances served a positive purpose. But we have also seen governments relying on them even when Parliament could have been convened immediately,” Khadka said.

“In the latest case, the government went a step further by postponing an already summoned parliamentary session in order to promulgate ordinances.”

He questioned why governments with comfortable parliamentary majorities continue to bypass the ordinary legislative process.

Ordinarily, governments face legislative difficulties only after losing their majority in Parliament. If a government enjoys majority support, experts ask, why should it need to rely on ordinances?

Successive governments have argued that the parliamentary process is often too slow to respond to urgent legal needs. The Balendra Shah government offered the same justification when it introduced its package of eight ordinances.

Khadka, however, said the explanation does not reflect the broader pattern.

“Procedural delay has become a convenient justification,” he said. “In practice, ordinances have increasingly become a tool for bypassing Parliament and making executive action easier. Their use is now driven more by political and administrative convenience than by genuine necessity.”