As many as six writ petitions have been filed at the Supreme Court, demanding nullification of the ordinance to amend the Political Parties Act, 2017, which was promulgated by President Bidya Devi Bhandari on Wednesday on the recommendation of the Sher Bahadur Deuba government.
The petitioners have argued that the government deliberately prorogued the House of Representatives with a malafide intention to issue the ordinance by bypassing the House.
Advocates Shreekant Baral, Prabesh KC, Niresh Kumar Lamsal, Sakuntala Bhusal, Anusha Aryal and Arjun Aryal filed the petitions on Thursday, with but one demand—an order to scrap the ordinance and actions taken based on it.
The Constitutional Bench of the Supreme Court will conduct a hearing on the petitions, but the date has yet to be finalised.
As an immediate effect of the ordinance, the CPN-UML and the Janata Samajbadi Party have split. Madhav Kumar Nepal, a senior communist leader who formerly headed the CPN-UML for 15 years, reached the Election Commission on Wednesday seeking to register a new party–CPN UML (Samajbadi). Similarly, Mahantha Thakur, who was stripped of the post of Janata Samajbadi Party chair on August 9, has applied for Janata Samajbadi Party (Loktantrik).
Whether Nepal and Thakur are allowed to form new parties as per their demands is up to the Election Commission, but confusion has already arisen as to what if the Supreme Court scraps the ordinance altogether.
“It is very much possible that the court can issue an order not to implement the ordinance because it has already made similar decisions in the past,” senior advocate Bipin Adhikari, a former dean at Kathmandu University School of Law, told the Post. “As the introduction of the ordinance has been guided by a malafide intention against the spirit of the statute, there is a ground for the court to stop its implementation.”
In the last two months, the Supreme Court has issued two orders asking the government not to implement the ordinances.
On June 10, it issued an interim order against the implementation of an ordinance, introduced by the erstwhile KP Sharma Oli government, to amend the Citizenship Act 2006. The court said the ordinance wasn’t of the nature requiring immediate action as prescribed by the constitution. It also said Parliament’s authority is infringed upon when attempts are made to address some sensitive issues like citizenship through an ordinance. The court had issued a similar ruling to stop the government’s plan to extract the mine-based stones, pebbles and sand.
The Oli government in the national budget, brought through an ordinance, had announced the opening of the extraction of the construction materials and exporting them. On June 18, the Supreme Court said issuing ordinance on issues like natural resources will have a long-term impact.
Though ordinances are allowed by the constitution, they should be used prudently and sparingly, say experts on legal and constitutional matters.
Article 114 (1) says if, 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 the recommendation of the Council of Ministers, promulgate an ordinance.
Nepal’s governing parties, however, have a tendency to issue ordinances at the drop of a hat whenever it suits them.
There is unanimity among experts that the recent ordinances, either by Oli or Deuba, were not brought because any immediate action was required, as provisioned by the constitution, but because they had to fulfil their vested interests.
It has become apparent—and even ruling party leaders have admitted in interviews with the Post—that the Deuba government issued the ordinance to amend the Political Parties Act-2017 to facilitate splits in the UML and Janata Samajbadi Party.
The introduction of the ordinance by the Deuba government a day after proroguing the House makes it clear that there was some malafide intention, according to observers.
But that ordinance has been promulgated and two groups have already sought to register new parties as per the ordinance, all eyes now will be on the Supreme Court.
It will take a while for the Election Commission to award Nepal and Thakur the parties they have demanded, as it first needs to amend regulations as per the changed provisions effected by the introduction of the ordinance.
Through the ordinance, the provisions on splitting and registering a new party have been changed. As per the amended provisions any group with 20 percent members of the Central Committee or the Parliamentary Party can split from the mother party and register a new party. Before the ordinance, the requirement was 40 percent members of the Central Committee “and” Parliamentary Party.
The ordinance has also scrapped the need for any party to secure 3 percent vote share under the proportional representation system to qualify as a national party. The earlier provision said a party must secure 3 percent vote share under proportional representation and win at least one seat in the lower house under the first-past-the-post system to become a national party.
The Oli government last year in April had also issued a similar ordinance seeking to change the “and” provision to “or”, keeping the 40 percent number intact. The Oli government’s ordinance had led to the formation of the Janata Samajbadi Party, as Sanghiya Samajbadi Party led by Upendra Yadav, and Rastriya Janata Party led by Thakur, had announced a hasty merger. The ordinance, however, was repealed after five days following widespread criticism. Despite differences, Yadav and Thakur, however, were forced to remain under the Janata Samajbadi Party, as neither side controlled 40 percent in the Central Committee and Parliamentary Party.
But the situation is different now. Unless the Deuba government rescinds the ordinance, the Supreme Court has to respond to the petitioners.
The question is what will happen to Nepal and Thakur’s parties if the Supreme Court not only scraps the ordinance but also asks to revert the actions taken under it.
Constitutional experts say it depends on the nature of the ruling.
“The actions that have been taken based on the ordinance will prevail if the court stays the ordinance,” senior advocate Chandra Kant Gyawali, who specialises on constitutional law, told the Post. “However, it can also scrap all the actions from the very beginning, which will invalidate the registrations of Nepal and Thakur’s parties.”
It will, however, also depend on how the process moves forward and when the court starts hearing and passes its verdict. The Election Commission can take 45 days at the most to take a decision on Nepal and Thakur’s applications.
“We have sent the amendments on the regulations related to political parties to the Law Ministry. The new regulations will come into effect once published in the Nepal Gazette,” said Dinesh Thapaliya, chief election commissioner. “It may take around 10 days to register the two parties though we have 45 days’ time.”
Now the Election Commission will invite the leaders of both the parties and examine whether they have completed all the legal provisions to register a new party.
Many say given the kinds of verdicts Nepal’s Supreme Court has passed in recent days, no one should be surprised if it comes up with an unexpected ruling on the ordinance as well.
On July 12, the Supreme Court while restoring the House dissolved by Oli asked the President to appoint Sher Bahadur Deuba, the leader of then main opposition Nepali Congress, making it arguably the first instance in the world in which the judiciary directly appointed the country’s executive head.
Earlier on March 7, the Supreme Court invalidated the Nepal Communist Party (NCP) and revived the CPN-UML and the Communist Party of Nepal (Maoist Centre). The two communist forces had merged in May 2018 to form the Nepal Communist Party (NCP). Rishi Ram Kattel, however, had filed a petition, demanding an order to annul the Election Commission decision to award the Nepal Communist Party (NCP) name to Oli and Pushpa Kamal Dahal, saying the party was registered under his name.
The court decision to revive the UML and the Maoist Centre had received flak from some quarters, with many saying the judiciary had given more than the petitioner had demanded.
Raju Chapagain, chairperson of Constitutional Lawyers’ Forum, says the court ruling will determine whether the CPN UML (Samajbadi) and the Janata Samajbadi Party (Loktantrik) will come into being even if they are registered by the Election Commission.
“The way the ordinance has been issued has definitely breached the spirit of the constitution,” Chapagain told the Post.
Nepal introduced anti-defection laws for the first time in 1997 with a view to controlling horse trading, which had become the bane of fledgeling parliamentary democracy. Even stricter provisions were introduced in the Political Parties Act in 2017 by Nepal’s politicians and lawmakers in search of stability, as frequent splits were taking place.
But the governments after the 2017 elections, first under the new constitution, have been using loopholes to issue ordinances, not giving two hoots to the stability principle, something what once used to be Nepali parties’ constant refrain.
Adhikari, the law professor, says the Deuba government has set an extremely wrong precedent by changing the law related to party split through an executive order, which will promote instability.
“His (Deuba’s) move is myopic. He doesn’t seem to be aware that the axe could fall upon his own party as well,” said Adhikari. “The move to scrap the threshold provisions is equally objectionable, if not more, to lower the bar for party splits.”