A bill to amend Constitutional Council Act comes as the latest case to demonstrate current administration is no different from the previous one in disregarding rule of law.
On July 18 last year, Minendra Rijal, a Nepali Congress leader, said the ruling coalition would show how the government should function.
Addressing the day’s meeting of the House of Representatives to seek support in the vote of confidence motion to Prime Minister Sher Bahadur Deuba, Rijal said the government under the leadership of his party would never go against the spirit of the constitution and would always maintain the dignity of Parliament.
“Nepali people will see how a government should be run,” he said, criticising the outgoing KP Sharma Oli government for misgovernance, dissolving the lower house twice and “ruling the country” through ordinances.
The Deuba government was formed, as per a court order, backed by five parties—Congress, CPN (Maoist Centre), CPN (Unified Socialist), Janata Samajbadi Party and Rastriya Janamorcha—on July 13.
They were protesting against the Oli government saying he failed to maintain the rule of law and to abide by the constitution while promoting corruption.
However, within a year since its formation, the way the Deuba government is functioning shows it is no different from the previous Oli government.
The only difference is that he has not dissolved the House in the last one year, or else Deuba has reapplied Oli’s playbook in earnest, experts and observers say.
“There is no fundamental difference between the erstwhile Oli government and the current Deuba government,” Khagendra Prasai, coordinator of MPhil Programme of Social Sciences at Nepal Open University, told the Post. “The only difference is that we have Parliament in place where the wrongdoings of the government can be discussed.”
Deuba’s party once came down heavily on the Oli government for bringing an ordinance to amend the Constitutional Council Act (Functions, Duties and Procedures) 2010.
Issued on December 15, 2020, the ordinance sought to change the prerequisite for convening the council meeting.
The council, led by Oli, accordingly, recommended 58 individuals to various constitutional bodies on December 15, 2020 and May 9 last year. Among them, 52 were appointed.
At least five petitions against the ordinance and the appointments are sub judice in the Supreme Court.
The Deuba government on Friday registered a bill to amend the Constitutional Council Act at the National Assembly retaining the provisions that were in the ordinance brought by the Oli government.
“It [meeting] shall be deemed to have achieved the required number of members if the chairperson and at least 50 percent of the members are present,” reads a provision in the amendment bill. “The chairperson and a majority among at least 50 percent of the members can take a decision if the consensus bid fails.”
The constitution has envisioned six members in the council, with the prime minister as its chair. The chief justice, House Speaker, National Assembly chair, leader of the opposition and deputy Speaker are members.
The position of the deputy Speaker, however, is vacant. If the bill gets through parliament, the council’s meeting can convene in the presence of the prime minister and two other members. The three can take a decision.
Earlier in December 2020 and May last year, the council led by Oli made the recommendations in the presence of Chief Justice Cholendra Shumsher Rana and National Assembly chair Ganesh Timilsina.
“In essence, the present bill is similar to the ordinance issued by the erstwhile government,” advocate Om Prakash Aryal, who challenged the Oli government’s ordinance and appointments that were made accordingly.
“This is against the spirit of the constitution.”
There shall be deemed to have been achieved the quorum for holding a meeting if the chairperson and at least other four members are present, says the existing Act.
Oli had defended his move of issuing the ordinance saying the main opposition leader [Deuba] constantly refused to participate in the meeting. Since an infighting was going on in the then ruling Nepal Communist Party, born out of a merger between the CPN-UML and Maoist Centre, Speaker Agni Sapkota showed no interest in participating in the council meeting. Sapkota was elected House Speaker from the Maoist party.
Two members’ reluctance to attend the meeting may have prompted Oli to issue the ordinance, but the way appointments were made elicited criticism that individuals were handpicked based on certain interests rather than merit.
Now Deuba’s intention also looks the same.
Constitutional experts say the Deuba government has disrespected the judiciary by introducing the bill with the provisions in the ordinance that was challenged in the court.
Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, said it is paradoxical to see the government, which was formed because the Oli government was running amok, is doing just the same.
“This is worrisome. It doesn’t seem the Deuba government has respect for the constitution,” he told the Post. “It looks like a competition is going on among the parties in setting bad examples.”
On the day Deuba was seeking the vote of confidence last year, Congress leaders said issuing one ordinance after another was an attack on the rule of law and disrespect of the Parliament and vowed not to engage in such acts.
The commitment did not last long.
Within a month of its formation, the Deuba government on August 17 last year issued an ordinance to amend the Political Parties Act easing a split of the parties.
Revising an earlier provision which required the backing of at least 40 percent of Central Committee and Parliamentary Party members to register a new party, the ordinance lowered the ceiling. After the amendment, any group having support of over 20 percent of Central Committee or Parliamentary Party members could register a new party at the Election Commission.
The ordinance was issued to ease the split of the CPN-UML.
The provision was brought because the Madhav Nepal faction of the party had the support of just 20 percent members in the Parliamentary Party.
What made the Deuba government look bad was it was his party that had vehemently criticised the Oli government for issuing a similar ordinance back in April 2020. The move, however, led to the merger between the Samajbadi Party and the Rastriya Janata Party to form the Janata Samajbadi Party. That the Janata Samajbadi has split again is a different story altogether.
The Deuba government in the last one year has issued a dozen ordinances, some of which just days before House sessions were summoned.
“The constitutional provision that allows the government to issue an ordinance has been grossly misused by both the governments,” said Prasai, the professor.
Article 114 of the constitution 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.
That political culture in Nepal is on the wane is just what everyone has been talking about for a while, with experts and observers constantly warning politicians to mend ways through their commentaries and interviews.
Kleptocracy has become the norm and political corruption and cronyism have increased, they say.
The five parties in the current government fervently spoke against the Oli government, charging it with promoting corruption and anomalies during its tenure. Now the Deuba government is accused of the same.
A recent case in point is tweaking of tax rates by Janardan Sharma who has now resigned after charges that he involved outsiders in making the budget. Deuba and Maoist chair Dahal clearly seemed to have been trying their best not to lose him as finance minister.
Observers say the Congress calls itself a democratic force but that is not reflected in Deuba’s actions.
Daman Nath Dhungana, a former Speaker and a civil society member, said like the Oli government, the incumbent government too is flouting the constitution in an obscene fashion.
“The actions of successive governments show attempts are being made to make the present constitution dysfunctional,” Dhungana told the Post. “Someone who doesn’t follow the constitution and the rule of law cannot be democratic.”
On Saturday, a minister from the Madhesh Pradesh government briefly shared his experience on two governments led by Oli and Deuba.
Speaking at a discussion organised by Kantipur Media Group in Janakpur, Bharat Kumar Sah, internal affairs minister, said the government led by Deuba is no different from the one led by Oli when it comes to devolution of power.
Oli was criticised by different quarters as well as the Congress for being anti-federal.
“The Oli government functioned with a centralized mindset and the present government is no different,” said Shah, who represents the Maoist Centre, a coalition partner in the Deuba government. “There’s no difference between the two governments at all.”
The government, however, has defended its bill to amend the Constitutional Council Act, saying it is necessary as there is a legal void after the ordinance by the Oli government was repealed.
“Frankly speaking, the provision was included by the Prime Minister’s Office to ease the decision making in the council,” said a minister in Deuba cabinet. “However, the bill is different from the ordinance. It makes it mandatory to have the presence of three people including the chairperson to make decisions while only two could do as per the ordinance.”
