Nepal | November 30, 2020

Our Democracy is under attack

Akshya Aryal
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At a time when the country has been in lockdown for the past month and its citizens are fighting against the wreckage caused by Covid-19, it is astounding that the cabinet deemed this to be an appropriate time to introduce amendments that have colossal consequences in the functioning of the state machinery.

KATHMANDU: Amidst the global pandemic, on April 20th, the executive branch of the government under the leadership of Prime Minister KP Sharma Oli found it opportune to introduce two ordinances. The president has endorsed Constitutional Council (function, duties, rights and procedure) first amendment, Ordinance, 2077.

These ordinances have raised eyebrows across the country with many people touting this move to be an act of consolidation of power by the ruling government. Article 114 of the Constitution provides for the issuance of an ordinance by the executive. This article vests the President with the power to introduce any ordinance in order to implement a law wherein the matter is urgent and time is of the essence, upon the recommendation of the council of ministers.

The Constitutional Council is a body created under the purview of Article 284 of the Constitution consisting of members from all pillars of the government including the Prime Minister, the Chief Justice, Speaker of the House of representatives et al. The duties and functions of the Constitutional Council as encompassed in the Constitutional Council (functions, duties, rights and procedure) Act 2009 (2066) (“the Act”). The Act, read with Article 284 of the Constitution, prescribes power to the Council to make constitutional appointments including but not limited to the Chief Justice, Supreme Court Justices, Chair of the Election Commission, Chair of the Commission for the Investigation of Abuse of Authority.

The ordinance introduced on Monday has brought about some key changes. The Act provides that all decisions made by the Constitutional Council shall be unanimous. If such unanimity cannot be achieved, then the chair (PM) shall call for another meeting wherein all members shall vote and the majority decision will pass. The ordinance has deviated from this fair procedure by removing the requirement of a unanimous decision. The first layer of decision itself requires a majority voting between the six members. Additionally, if majority cannot be achieved in this voting then the chair (PM) shall call for another meeting any time by giving at least twenty-four-hour notice. In this meeting, irrespective of how many members are present, there shall be a voting and a simple majority shall prevail as the deciding outcome of this process. Illustratively speaking, if majority cannot be reached in the first round of voting and the PM calls for a second meeting by giving twenty-four hours notice, in which there is a presence of mere three members (50%) and the voting ends at 2:1, then the said motion would pass and the decision would prevail.

At a time when the country has been in lockdown for the past month and its citizens are fighting against the wreckage caused by Covid-19, it is astounding that the cabinet deemed this to be an appropriate time to introduce amendments that have colossal consequences in the functioning of the state machinery. At a time when citizens across the nation are preoccupied by fighting for survival as many are stuck outside their hometowns without food, the economy is crumbling and where there is insufficiency of Protective Personal Equipment (PPE), perhaps, it is the belief of the Honourable Prime Minister that a decision that vehemently opposes the spirit of democracy can be easily swept under the carpet.

The Constitutional Council was enshrined in the Constitution of Nepal after years of struggle and delay in order to ensure smooth operation of the democratic functions of the state as well as its subsidiary instruments. The council consists of members from all three pillars of the government as well as a member of the opposition party so as to underline the principle of check and balance between branches of the state and also to ensure that no stakeholder gets an advantage over the other wings of the state. This principle has been blown to pieces by the ordinance passed by this government on Monday. Using this ordinance, the executive can gradually muster power by appointing their representatives in various constitutional positions (such as election commissioner as well as chair of committee of investigation against abuse of authority) which in turn furnishes them with unfettered power and the ability to take decisions without the fear of being challenged and/or investigated.

Furthermore, it is imperative that the citizens of the state analyse the timing of this decision. Introducing a decision as significant as this, during a time of national crisis, certainly raises question related to whether the priority of the citizens and their government are in synchronization with one another. Amidst rising cases of Covid-19 as well as hunger and desperation among the economically weaker segments of the society, the fact that the top level government officials are fixated on consolidation and mongering of power for the future, one must think whether this is a method of the government to pre-emptively shield themselves from possible questions raised by the citizens with regards to their competency and transparency in dealing with the global pandemic.

If we were to take a look at the jurisprudence of ordinances, the primary function of an ordinance is to introduce a law that requires immediate implementation. However, in order to make the ordinance a democratic instrument of the Constitution, it is necessary that the ordinance is recommended by the council of ministers. Here, in this scenario it is unclear whether this ordinance has been recommended by the council of ministers since it was rushed and the assent of the President had arrived during the cabinet meeting. This is a major breach in the process laid down in the Constitution. Moreover, it is difficult to understand what the immediate need of this ordinance is and why an ordinance was issued at this moment as opposed to an amendment being introduced amendment in the parliament post-lockdown.

The President is also vested with the power by the Constitution to repeal an ordinance. Many forums as well as individuals have expressed their demand of revocation of the ordinance to the government. Nepal achieved its democracy after years of struggle and dissent and is still in the early stages. It is essential for the survival of our democracy that no ruling government may bypass or undermine the basic structure and spirit of the Constitution. We cannot allow the executive to eliminate the notion of check and balance between the pillars of democracy. It is pertinent to highlight that any ordinance is valid only for a period of sixty days after which the government may either re-introduce it or move the parliament in order to legislate on it. As citizens, it is our duty to speak up against such unconstitutional wrongdoings of the people that we have elected. The onus lies on all of us to ensure that this does not continue, for we are the custodians of our own democracy.

Akshya Aryal has recently graduated from Nalsar University of Law, Hyderabad


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