Political expediency trumps Nepal Constitution

On Tuesday, President Bidya Devi Bhandari on the recommendation of the government repealed the ordinance to amend the Political Parties Act that she herself signed on 26 August.

Nepal’s ceremonial president was acting on orders of Prime Minister Sher Bahadur Deuba who needed to relax a constitutional provision that made it  difficult to split parliamentary parties so that dissidents could break away from the UML and get him the majority to form a government.

For this, Deuba first prorogued Parliament to issue the ordinance allowing political parties to split if 20% of the Central Committee and the parliamentary party voted for it – down from 40% needed in the Constitution. 

The ordinance on the constitutional amendment allowed UML dissidents led by Madhav Kumar Nepal to break away from former prime minister K P Oli’s UML to form a new party, the UML (Unified Socialist) and join Deuba’s five-party political alliance.

Nepal’s Unified Socialists was registered at the Election Commission with 95 Central Committee members, 58 of whom defected from from Oli’s UML. 

Deuba’s ordinance also enabled Mahanta Thakur to form his own Loktantrik Samajbadi Party after the Election Commission gave the leadership of his Janata Samajbadi Party to Upendra Yadav. Thakur had been demoted from the JSP’s Central Committee for supporting Oli. 

The ordinance, which needed to be ratified by Parliament within 60 days, had been weighing Deuba down, delaying his Cabinet expansion. While Nepal was been worried that the ordinance might not be ratified and his new party would have no legal standing, Upendra Yadav wanted the ordinance scrapped to prevent his own JSP from splitting further.

With the repeal of the ordinance, the way is now clear for Deuba to expand his Cabinet. But this has come at great moral and legal cost for Deuba who is seen to have bent the Constitution to fulfil his partisan interest.  

"Making laws to serve a particular political party or individual is a blow to the democratic system," says political analyst Shyam Shrestha. "This makes a mockery of the rule of law, and is unimaginable in a democracy.” 

In a democratic system, ordinances are issued only when the House is not in session, as legal facilitation to matters of national import. However, PM Deuba suspended parliament in August just so he could issue the party split ordinance with the sole purpose of allowing Madhav Nepal to form a new party. Now he has withdrawn the ordinance, and is pretending that everything is back to normal.

Deuba is just following the steps of his predecessor, K P Oli who himself suspended Parliament last year and issued an ordinance allowing political parties to split if 40% of either the parliamentary party or the Central Committee agreed to it. The 2015 Constitution actually prohibited parties from splitting at all. 

At the time, Deuba, who was in the opposition,  had joined Oli’s political rival Pushpa Kamal Dahal of the Maoists and Madhav Nepal in calling Oli’s move “unconstitutional and unacceptable”. Oli was forced to withdraw the ordinance even before President Bhandari signed it following fierce criticism from all sides.

This time, while Dahal and Nepal stayed mum, Deuba’s ordinance move has drawn heavy flak from across the political spectrum including from within his own NC. 

“The ordinance was not justified at all, it was done solely for short-term political expediency, and now we are in a constitutional void where the 40% provision also needs to be passed by ordinance again,” says advocate Radheshyam Adhikari.

In a scathing Tweet, Rastriya Prajatantra Party Chairman Kamal Thapa posted: ‘This an example of corrupt and shameless politics.’

Article 5 of Nepal’s Interpretation of Laws Act states that the repeal of any Act amending an original law will not affect the implementation of the amendment: ‘Where any Act repeals any enactment by which the text of any Act or Rules/Regulation/by-law was amended by the express omission, insertion or substitution of any matter, then unless a different intention appears the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.’

Indeed, Shyam Shrestha says that the very government which issued the ordinance recommending that it be repealed is confirmation that it was  wrong move in the first place: “If it was incorrect to introduce the ordinance, why was it issued? And if it was the right thing, why was it then repealed?”

Translated by Shristi Karki from the Nepali original in www.himalkhabar.com