Executive order aimed at ‘limiting provinces’ powers’

Kathmandu, November 12

Constitution experts say the executive order issued by the federal government to provincial governments on October 28 allowing them to deploy and transfer police personnel up to sub-inspector level is unconstitutional.

Constitution experts Purnaman Shakya, Radhe Shyam Adhikari and Surendra Bhandari argue that maintaining law and order within provinces is the domain of provinces and cannot be altered by the federal government through an executive order.

Shakya said while the federal government had the power to issue directives to the provincial and local governments, that did not mean it could interfere with the jurisdiction of provincial and local governments. “The federal government has an obligation to enact laws to define powers of federal and provincial governments on policing which cannot be defined by an executive order,” he said.

He added that if provincial governments lacked power over police personnel, they would be handicapped. “Without power to mobilise police force, provincial governments cannot enforce laws,” he said. He added that in the federal set-up all tiers of government had their own police force. “In Nepal, unitary mindset is at play preventing provinces from mobilising their own police force,” he added.

Senior Advocate Surendra Bhandari said while the federal government had the power to issue the executive order in matters under its jurisdiction, it had no power to issue executive orders in matters under the jurisdiction of provincial governments. He said as per Schedule 6 of the constitution, provincial governments had the exclusive power over the provincial police.

“Executive order can neither reduce nor increase provincial governments’ power. If the government wants to limit the power of provincial government then it will have to amend the constitution,” he argued.

He said the move showed that either the government had a unitary mindset or it lacked the ability to manage affairs as per the spirit of federalism.

Senior Advocate Radhe Shyam Adhikari, who is also a Nepali Congress lawmaker, said, “Internal security is the domain of provincial governments and the central government cannot issue an executive order to change that,” he said.

He added that executive orders were issued only when the king usurped power in the past.