Government of the leaders, for the leaders, by the leaders

Coalition politics means principles do not matter any more. Nowhere is this truer than in Nepal where none of the main parties got a majority in November elections, and are wooing fringe parties by freeing their cadre serving time in jail for crimes.

Since Parliament has not convened yet, the main parties have taken this decision by ordinance so they get the total 138 seats in the House to form a government.

A cabinet meeting of the caretaker government on Sunday sent a letter to President Bidya Devi Bhandari informing her about the ordinance to amend the National Criminal Procedure (Code) Act 2017, which would allow the government to grant amnesty to political prisoners.

Subsection 8 of Section 116 of the Criminal Procedure Code stipulates that no case which is under consideration at the stage of appeal, reference, review or revision shall be subject to withdrawal.

The ordinance seeks to add a provision which will allow dismissal of pending court cases against parties or groups engaged in violent politics.

Read also: Arnico Panday, the political scientist, Nepali Times

If passed, the ordinance will facilitate the release of Nagarik Unmukti Party leader Resham Chaudhary to join the government and give the governing alliance the number it requires in Parliament. Chaudhary’s wife Ranjita Shrestha is the chair of the party and one of three newly-elected MPs from the new party. Resham Chaudhary is serving a life sentence for his involvement in the 2015 Tikapur massacre of policemen.

The ordinance will also benefit Janamat Party leader C K Raut, some of whose party cadres are in prison. Janamat Party has six elected MPs.

But more importantly, it sets a precedent for amnesty for Maoists, security forces and politicians who are accused to war crimes during the 1996-2006 conflict.

Government spokesperson Gyanendra Bahadur Karki tries to put a gloss on the decision by saying that the ordinance was designed to bring parties that have had “violent disagreements to the country’s political system to the mainstream … and foster political unity”.

But the real intention behind the ordinance is not lost on most Nepalis, and the opposition UML as well as other parties that won seats in the November elections expressed outrage.

Read also: Seats of power, Shristi Karki

Interestingly, the most vocal criticism of the ordinance came from within the Nepali Congress (NC) which leads the coalition. In a scathing rebuke, NC leader Gagan Thapa wrote on social media: ‘The ordinance is legally, politically and morally unsound. It is unconstitutional and against the spirit of democracy and the parliamentary system.’

Thapa is challenging Prime Minister Sher Bahadur Deuba for leadership of the party. But Deuba appears to be more intent on striking deals with Maoist leader Pushpa Kamal Dahal over the next prime minister, president, house speaker, and other constitutional appointees.

Resounding criticism also came from other NC leaders like Bishwa Prakash Sharma and Shekhar Koirala, as well as newly-elected young MP Pradip Paudel. Party leaders have said that the party was not consulted before the ordinance was introduced.

This is not the first time Deuba has used an ordinance to form a government during his fifth term as Prime Minister. In August 2021, he amended the Political Parties Act just so that his ally Madhav Kumar Nepal could form a new party and join his coalition.

He repealed that amendment when it had served its purpose, and had come under widespread criticism from constitutional experts for blatant political expediency.

Read also: Back to the future, Santa Gaha Magar

The reaction to this executive decision has been even more  negative, with the main opposition UML, the legal fraternity, security chiefs and civil society demanding that the government withdraw the ordinance forthwith.

On Tuesday, the Supreme Court Bar Association added its voice to the condemnation of the move: ‘An ordinance to amend the law proposed by a caretaker government before the first session of the newly-elected parliament disregards the people’s mandate and makes a mockery out of the constitution, rule of law and the Supreme Court’s established recognition of criminal law.”

Deuba’s decades-long grip over NC party leadership gives him a significant advantage over any other leader aspirant within the party, and he has tried to railroad the ordinance despite NC dissidents and the new independent RSP doing well in elections.

The RSP’s newly-elected MP from Lalitpur-3, Toshima Karki said: “That the caretaker government can stoop so low to free criminals from jail just to stay in power shows their greed for power. This is against the rile of law and will spell disaster for the country.”

Despite some support from within the NC and sympathy from the public, Gagan Thapa’s chances of winning parliamentary party leadership and becoming Prime Minister remain slim.

Read also: In with the new, out with (some of) the old, Anita Bhetwal

“I don’t see the old leaders trusting the newer generation with the leadership and handing over the reins at this point in time,” notes political analyst Indra Adhikari.

She adds: “Our socio-political structure has historically favoured the elite which means that political access is limited, and power rarely changes hands.”

However, the Proportional Representation (PR) candidates chosen by seven nationally-recognised parties are set to be certified as elected before preparations for parliamentary party elections. Parties have sent the finalised list to the Election Commission, which will forward them to the President.

As much as the FPTP candidates reflected the political leadership’s disregard to field women and minority communities in direct elections, the PR list finalised by parties reflects the status-quo and nepotism of the established parties.

The ordinance is proof that the caretaker government is determined to bend Constitution any which way to keep the coalition intact despite some of its members suffering huge losses in elections. Nepal’s traditional politicians, it seems, want to carry on doing what they have always done.

Indeed, the PR list has almost entirely filled the 33% constitutional quota for female representation in parliament. Meanwhile, Dalit representation, without a similar constitutional requirement, remains low.

Additionally, PR elected candidates include high-profile political figures— some of whom include Arzoo Rana Deuba— wife of PM Deuba, Manju Khand—wife of Home Minister Balkrishna Khand, as well as former Deputy Prime Minister Bimalendra Nidhi.

Read more: The past is foretold in Nepal poll results, Shristi Karki