Experts question motive behind introducing and repealing the ordinance on political parties.
CPN-UML chairperson KP Sharma Oli in his meeting with Minister for Law, Justice and Parliamentary Affairs Gyanendra Bahadur Karki on Tuesday objected to the government decision to repeal the ordinance on political parties, which was issued on August 17. It came into effect the next day after authentication from the President. The government had prorogued the session of the federal parliament a day before, on August 16, to clear the way to introduce the ordinance.
Sending his message to Prime Minister Sher Bahadur Deuba through the law minister, Oli on Tuesday said the abrupt prorogation of the lower house to introduce the ordinance was a conspiracy against the main opposition besides being an unconstitutional move. He said as it is Parliament that promulgates, amends and scraps the laws, the government cannot repeal the ordinance when Parliament is in session. Oli said the repeal of the ordinance shows that it was brought with a mala fide intention to split the UML.
CPN (Unified Socialist) led by Madhav Kumar Nepal was formed after a split in the UML and the Loktantrik Samajbadi Party was formed following a split in the Janata Samajbadi Party, utilising the provisions in the ordinance. Oli himself in April last year had introduced an ordinance which amended the Political Parties Act to allow dissidents to split parties if they commanded 40 percent either in the Parliamentary Party or in the Central Committee. It was withdrawn five days later, following widespread criticism. Though the ordinance aimed at splitting parties, it resulted in a merger of the Janata Samajbadi Party and the Rastriya Janata Party.
What is an ordinance?
An ordinance is a decree issued by the President, on the recommendation of the Council of Ministers, which is legally binding as a legislative act endorsed by Parliament. An ordinance can be introduced only when Parliament is not in session and there is an immediate need for a law to address a situation.
It has to get through Parliament within 60 days of the first meeting of a new session, or else it becomes ineffective. Article 114 of the Constitution of Nepal 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 recommendation of the Council of Ministers, promulgate an ordinance.
Why was the ordinance on political parties introduced?
A dissident faction of the UML under Nepal stood against its own government headed by party chair KP Sharma Oli and supported the then opposition alliance, led by the Nepali Congress, to form a coalition government. The Nepal faction wanted to split from the mother party but didn’t have the backing of 40 percent members in both the Central Committee and the Parliamentary Party, as required by the Political Parties Act to split the party. As the faction only had slightly over 20 percent backing of the Central Committee, the government led by Congress’ Sher Bahadur Deuba introduced the ordinance to amend the Act with the provision that a group in party can break away if it has 20 percent support either in the Central Committee or the Parliamentary Party.
Along with Nepal, the Mahantha Thakur faction of the Janata Samajbadi Party used the provision to launch a new party. Now as the motive to split the UML, as claimed by Oli, has been served, the government repealed it.
Why was the ordinance repealed?
Deuba hasn’t been able to expand his Cabinet for around three months as one of the coalition partners Janata Samajbadi Party demanded the ordinance be scrapped before the party can join the government. The party feared that its members who don’t get ministerial portfolios could split the party further. Just five lawmakers among the 21 (including two suspended) could part ways to form a new party. Some lawmakers left the Thakur faction to remain in the party in the hope of landing ministerial posts.
As the original provision of the Act has been restored with the repeal of the ordinance, it is now difficult for dissidents to split parties. Deuba’s coalition partners are now ready to nominate ministers for their respective quotas.
Was it targeted at splitting the UML?
From issuance of the ordinance to its repeal, facilitating the Nepal faction’s split from the UML seemed to be the sole motive of the ordinance as claimed by Oli on Tuesday. The CPN (Unified Socialist) was formed after a split in the largest party. The Thakur faction used the ordinance to break away from the Janata Samajbadi Party.
The Deuba government issued the ordinance in less than 24 hours after proroguing the federal parliament session. The split of the two parties began the very next day on August 19 after President Bhandari authenticated the ordinance. The two parties were formed in less than a week after the issuance of the ordinance.
Was the ordinance brought with mala fide intention?
Experts say the constitution envisions that ordinance can be issued only when there is a circumstance to fulfil the legal void with an emergency effect. Bipin Adhikari, a former dean at the Kathmandu University School of Law, said the promulgation of the ordinance by bypassing parliament is unjustifiable. He said it is no secret that the intention of the ordinance is to facilitate a split in the main opposition. Adhikari further said that the government cannot use its power to issue an ordinance with a discriminatory intention.
The ordinance was issued to split the UML, but it was repealed when the Janata Samajbadi Party landed in trouble. Though there is no legal or constitutional barrier to repeal the ordinance, there is a moral question as the issue is sub judice in the Supreme Court, he said.
Advocate Om Prakash Aryal said the promulgation of the ordinance was a politically correct decision as it was necessary to give a way out to then UML leaders who otherwise would have faced the party’s disciplinary actions. However, the move to issue the ordinance is against the spirit of the constitution, he said.
What next?
The ordinance has been repealed but whether it was constitutional hasn’t been tested yet. A total of six petitions have been filed challenging the ordinance which are sub judice in the Supreme Court. Adhikari said if the court deems the ordinance unconstitutional then it can declare all the actions taken on the basis of the ordinance null and void.
