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President Approves Contested Ordinance
Kathmandu, November 22 -- On Tuesday, the government proposed that President Ramchandra Paudel issue two ordinances to modify the Nepal Special Services Act and the Constitutional Council (Functions, Duties, Powers and Procedures) Act.
Following two days of study, he issued the first ordinance on Friday but kept the second one pending. "The ordinance concerning the Constitutional Council is still under review. The President will make an appropriate decision after examining it," Baburam Kunwar, Paudel's legal advisor, stated to the Post without specifying what the 'appropriate decision' would entail.
According to senior officials at Sheetal Niwas, the President is dissatisfied with the ordinance that permits appointments to constitutional roles without a parliamentary review, which is required by the constitution.
The provision entitled "No obstruction to appointment before parliamentary hearing" specifies that in the event the House of Representatives is dissolved, any nominee proposed by the Constitutional Council will be appointed immediately, without requiring a parliamentary hearing. It anticipates the parliamentary hearing to take place following the parliamentary elections, which are set for March 5.
A clause in the regulation states, 'If they fail to pass the parliamentary hearing within 45 days, the House of Representatives will take effect, and they will be automatically removed from their positions.'
The President is dissatisfied with the ordinance for two reasons: initially, it has simplified the recommendation procedure, and secondly, it has allowed for appointments to proceed without a parliamentary review, as reported by officials.
In July, Paudel declined to endorse the bill amending the Constitutional Council Act, which permitted the prime minister and a minimum of two members of the available group to appoint individuals to constitutional roles, stating that it violated the constitution.
The government of Sushila Karki kept the existing clause and introduced an additional one to facilitate appointments without a hearing. "This is even more regressive compared to the one the President had declined to approve in July," mentioned a senior official from Paudel's Office. "He opposes any legislation that breaches the constitution."
The administration has proposed an ordinance that supersedes the constitutional requirement for a parliamentary review. It is currently preparing a written explanation for the Supreme Court regarding the appointment of Karki, the former chief justice, as the prime minister, as well as the dissolution of the House of Representatives.
The constitution does not allow the chief justice or someone who is not a member of the lower house to serve as prime minister. Similarly, according to the Supreme Court's previous rulings, dissolving the lower house also violates the law.
Nevertheless, apart from a few political groups and a minor segment of the population, the actions were viewed as "necessary at this time." They support both Karki's appointment and the dissolution of the House—despite these being contrary to the constitution's wording and intent—as measures to prevent the nation from falling into a more severe crisis, while also cautioning that there should be no additional violations of the constitution.
"The regulation is a clear violation of the constitution. How can an ordinance override the explicitly stated constitutional provision regarding parliamentary hearings?" asked senior lawyer Dinesh Tripathi. "This action cannot be justified in any way." He mentioned that it is regrettable for the Karki government, which has the duty to rectify any constitutional violation, to commit such an act itself.
Speaking at a ceremony commemorating the 10th Constitution Day on September 20, Karki stated that the primary cause of the political turmoil the nation was experiencing was the failure to implement the constitution in its genuine essence.
Nevertheless, according to experts, she is currently following the same incorrect route taken by her predecessors. She had strongly opposed the actions of the previous KP Sharma Oli administration in appointing individuals to constitutional bodies without seeking parliamentary review.
A key motive behind the Karki administration's push for the ordinance is to fill the empty posts, such as the position of chief election commissioner at the Election Commission, which is tasked with conducting elections.
Nevertheless, officials from the commission state that no tasks have been delayed due to the absence of two commissioners. At present, the commission has three out of the five commissioners. "We have already finished more than 60 percent of the preparations and have encountered no issues in the absence of two commissioners," said a high-ranking official at the commission.
Constitutional specialists believe the present administration ought to avoid making choices with lasting consequences.
"Conducting elections on time is the main responsibility of this government. It would be wise not to enter into contentious issues, which could only damage its reputation," stated Tripathi.
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