A study conducted by the Parliament Secretariat revealed that bypassing the Parliament and issuing ordinances for the sake of power has been rooted deeply within Nepal. The study has said the parliamentary system and its integrity are being questioned as a whole when given that the executives have exploited the exemption provided by the constitution to address specific tasks immediately during the parliamentary recess.
The Parliamentary Studies and Research Section under the Federal Parliament Secretariat recently published ‘Ordinances in Nepal: Report on System and Practice (2022)’.
“The report highlights a recurring trend of attempting to influence and govern through ordinances in Nepal.” The report has noted that there is a recurring trend of leaders trying to govern the country by bringing in ordinances.
The report mentions the period following King Gyanendra’s direct rule in 2002 and the two instances of Parliament dissolution in 2020 and 2021. The study concludes that ordinances issued in 2020 and 2021, coupled with modifications to legal frameworks and instances of malpractice, have raised serious doubts about the integrity of the ordinance system itself.
Learning from history
In Nepal’s constitutional history, ordinances have been consistently issued since 1959. After 1959, five ordinances were issued in 1960, including three concerning taxation, and two in 1961.
However, the then-King Mahendra, under the Panchayat system, abolished the government and declared a coup, replacing the democratic system. Following this, the Panchayat Constitution of 1962 was promulgated, leading to the issuance of 64 ordinances on various dates until 1990.
After the abolition of the Panchayat system and the restoration of the democratic system with a monarch, a new constitution was promulgated. Even in the Constitution of Nepal (1990), the provision for the issuance of ordinances remained intact.
A total of 182 ordinances were issued until 2006, with 30 ordinances issued between 1990 to 2002. This period marked the institutionalisation of the multi-party democracy system and the emergence of the Maoist revolution.
The inclination to issue ordinances significantly escalated after King Gyanendra assumed direct rule. In 2003, 27 ordinances were issued, followed by 33 the next year, and a remarkable 79 ordinances in the year following that.
Following the People’s Movement of 2006, the 240-year monarchy came to an end, and along with it, the interim constitution of 2007 was introduced while the new constitution was being drafted. However, the misuse of ordinances did not stop, and by the time the new constitution was promulgated in 2015, a total of 39 ordinances had been issued.
After 2015, no ordinances were issued in the years 2015, 2016, and 2019, while three ordinances were issued in 2017 and five in 2018, indicating a slight decrease in the frequency. In 2020, 11 ordinances were issued, whereas the number rose to 28 in 2021.
The two attempts at dissolution of the House of Representatives – on December 20, 2020, and May 22, 2021–led to a significant surge in the number of ordinances issued during that period. However, the reinstatement of the parliament led to a decrease, with only two being issued in 2022.
But interestingly, only a small fraction of the ordinances turned into laws. The study revealed that, after 2015, even though 49 were issued within five years following the first elections, only 17 of these ordinances have been converted into laws. After the 2022 elections, an ordinance was issued on May 3, the government issued an ordinance to amend the practice of usury.
Use for political gain
The primary responsibility of the Parliament is to enact legislation, which is why it is often referred to as the legislature. According to the constitution, when Parliament is not in session, the executive branch can exercise legislative authority to issue ordinances for the immediate establishment of legal arrangements, only under special circumstances.
There is a constitutional provision that empowers the incumbent President to issue an ordinance based on the government’s recommendation and present it during the first session of Parliament after its resumption. As per the provision, the ordinance must be converted into law through a replacement bill within 60 days of its being submitted to the Parliament. Otherwise, the ordinance will be dismissed.
Regrettably, though, the prime ministers and the political parties in Nepal have frequently abused this. There have been instances of lawmakers deliberately ending the ongoing sessions prematurely and even making attempts to dissolve the Parliament itself just to facilitate and expedite the issuing of the ordinances.
Whether it was regarding this year’s budget announcement or splitting political parties, several ordinances were used to facilitate political manoeuvring for power. The ordinance for Nepal Citizenship Act (2006) was issued on May 23, 2021, a day after the Parliament was dissolved at midnight.
On June 11, 2021, the Supreme Court stopped the implementation of the ordinance and stated that if this practice is seen as normal, it could violate the Constitution by overstepping the powers of the legislature and interfering with the separation of powers. This might lead to an unfair application of constitutional rules, it said.
The recent report has pointed out that adjourning or dissolving the Parliament during its regular session for the sake of issuing ordinances is not in line with principles of good governance and democratic rule. In the report, the events were defined as the results of political gains and losses. It further analysed that ordinances have been issued based on two distinct tendencies–to address vested interest or as a tool for governance.
However, the report also recognises the importance of ordinances used to amend laws about sexual violence, acid attacks, and other severe criminal acts, especially in cases where the Parliament was not in session. The report concludes that such measures were necessary at the time.
Persistent approach to ordinances
Other issues raised by the report were regarding the recurring practice of pushing the same ordinance multiple times. Under the leadership of former Prime Minister KP Sharma Oli, the same ordinance was enacted on four separate occasions:
- Ordinance to Amend Some Acts on Sexual Violence
- Ordinance to Amend Some Acts Relating to Criminal Offenses and Criminal Procedures
- Ordinance for Social Security
- Ordinance to Regulate Acid and Other Hazardous Chemicals
- Ordinance for Nepal Police and Provincial Police (Operation, Supervision and Coordination)
“It appears that, though in alignment with the essence and principles of the constitutional system, the government repeatedly introduces these ordinances without taking them through the parliamentary process to become laws,” stated the report adding how the practice mirrors the governmental practice.
Although the study has subtly implied the message, it can be understood that Nepal’s governance system has often been at odds with the prevalent constitution. The study has raised questions about the Ordinance on Constitutional Council Act at various points.
Questions were raised because, as per the said ordinance, it was outlined that just three people could be present in the Constitutional Council. This resulted in 32 individuals being recommended for appointment to various constitutional bodies in a Constitutional Council meeting that sat on December 15, 2020.
More questions were raised because just five days later, the incumbent government dissolved the House of Representatives, and the appointees were subsequently approved without undergoing parliamentary hearings. Notably, it drew international scrutiny regarding the status of the National Human Rights Commission, a constitutional body.
The issue reached the Supreme Court, and the appointments made were under review. However, the same ordinance was reissued the second time. Based on this, other 20 officials were recommended. Again, against the constitutional provision, they were appointed without a hearing by the Parliamentary Hearing Special Commission, as the House of Representatives was dissolved on May 22, 2021.
Writ petitions challenging both of these events of appointments are currently under review in the Supreme Court.
The report, in retrospect, has advised that the legislative should consider a democratic system when introducing ordinances. It further warns, “If the misuse of the authority to issue ordinances persists, there is a risk of increasing autocracy in governance.”
It also suggests, “There should be a high degree of consensus among political parties concerning ordinances, to put an end to the political practice of opposing or hastily issuing ordinances as per their convenience.”
11 budget announcements through ordinances
After the introduction of democracy in 1951, the tradition of presenting the budget to Parliament began. A year later, the practice of announcing the budget also started.
Over these 72 years, many budgets have been deliberated and approved by Parliament while the government has also resorted to ordinances to pass the budget. According to the report, there have been 11 such occasions in Nepal to date.
Upon the restoration of democracy, then-Finance Minister Devendra Raj Pandey presented the budget for the fiscal year 1990/91 to the Prime Minister on July 13, 1990. Other budget announcements via an ordinance were made for the fiscal years 1994/95, 2002/03, 2003/04, 2004/05, 2005/06, 2010/11, 2012/13, 2013/14, and 2021/22. The instances hint that the elected representatives often implement ordinances without parliamentary discussion.
This has been true even in matters as significant as setting and collecting taxes. It is understood that taxation forms a vital foundation for running a country. Even though it is fundamentally recognised in the parliamentary system that it should and must be as per the laws set by elected representatives. As per the constitution, all three tiers of government should have well-defined provisions, as per the law, about the taxes they impose.
Case of judicial oversight
Experts argue that the arbitrary practice of issuing ordinances, be it on any subject, runs counter to the principle of the separation of powers, represents governmental or administrative arbitrariness, and contravenes the constitutional framework governing ordinances.
Advocate Raju Prasad Chapagain, a former chair of the Constitutional Lawyers’ Forum, revises that there has been rampant misuse of ordinances, even during the implementation of the current constitution since 1991. He characterises this situation as a lack of effective judicial control.
“The government often issues ordinances for its interest rather than need. And, in some cases, once an ordinance has been used, it is revoked without presenting a replacement bill to Parliament,” says Chapagain. “In the absence of effective judicial oversight, and when the court does not maintain control over such matters, it amounts to a recurring misuse of the constitution and imposes a breach of constitutional ethics.”
Meanwhile, senior advocate Chandra Kanta Gyawali regards the recurrent practice of issuing ordinances, as a violation of the Constitution.
“The meaning of ordinances is becoming arbitrary,” says Gyawali.
Gyawali underscores the need for the Supreme Court to clarify the boundaries and constraints of ordinances. If not addressed, he warns, the pattern of undermining the values and dignity of the Parliament is likely to persist.
This story was translated from the original Nerapali version and edited for clarity and length.
