These days I feel hopeless about the future of our constitution and Nepali politics. Efforts to govern the country through ordinance, reinstatement of parliament on the order of the apex court, debate on scrapping secularism and federalism are some instances which depress me.
In Madhesh, I see people’s frustration with Madheshi parties for their recurrent splits, their incompetence in standing united for the real cause of Madhesh, and rampant corruption in Province-2. Young people are least satisfied with the federal as well as the provincial governments.
Rule by ordinance
In this context, the government of Sher Bahadur Deuba introduced an ordinance to amend the Political Parties Act (2017) making the procedure to split the party and register a new one even easier. The ordinance requires 20 percent support of either parliamentary party or central committee from a mother party to get a new political party registered at the Election Commission. In what can be seen as an immediate effect of the ordinance, the CPN-UML and Janata Samajbadi Party have formally split. However, this ordinance has already been challenged in the Supreme Court. It’s possible that the court will issue an order against the implementation of the ordinance as it’s against the spirit of the prevailing laws, which are in favour of anti-defection.
Deuba’s predecessor, K P Oli, had tried to do the same. He brought an ordinance seeking to change the “and” provision to “or”, keeping the 40 percent number intact for defection. But the ordinance was repealed after five days, following widespread criticism from various quarters.
In June, the Oli government brought another ordinance to amend the Citizenship Act (2006). The Supreme Court invalidated this too. In response to the writ petitions filed against the implementation of the ordinance, the apex court observed that parliament’s authority is downgraded with attempts that are made to address sensitive issues like citizenship which are of national importance through an ordinance.
It is clear that these ordinances, whether brought by Oli or Deuba, were enacted not because of the need of the country and for the larger public wellbeing but to fulfil the vested interests of the governing parties or their allies. You cannot bring ordinance just when you like it. Article 114 of the constitution of Nepal provides that if any time, except when both Houses of the parliament are in session, the President is satisfied that circumstances exist which render it necessary for him/her to take immediate action, s/he may promulgate such ordinance as the circumstances appear to him/her to require.
We all know that there was nothing called “immediate requirement” of the ordinance. In our context, the basic objective of the ordinance has now been to serve vested interests. Our governments have been trying to take advantage of ordinance to push their ill agendas by bypassing laws because they know that they will never be able to bring similar legislation through parliament.
Many MPs seem to think that the ordinance and legislation are the same thing. They are not. Both making of an Act and making of an ordinance may be regarded as legislative work, yet there is a vital difference between the two: An ordinance is made by the executive while an Act is made by the democratically elected legislature after due deliberation. An ordinance is never like a law, an Act, it can never be equated with an Act. MPs may think what’s wrong in promulgating the ordinance? Let me ask you: What happens to a democracy when the ordinance, a temporary expedient and an inferior law, begins to be used as a sword to strike a blow against the laws passed by parliament?
Poor governance has posed a threat to the constitution. Elected representatives who are expected to safeguard it are themselves putting it in peril.
In India, there is a precedent that says the exercise of “ordinance-making power may be challenged, if it could be established that the President has not acted bona-fide” as was held by the Privy Council in the case of King Emperor v Benoari Lal Sharma (1945). The government of Bihar had promulgated 256 ordinances between 1967 and 1981 and all of them were kept alive from one to 14 years by re-promulgating them from time to time. Out of 256, 69 were re-promulgated several times and kept alive with prior permission from the President of India, who acts on the aid and advice of the Council of Ministers headed by PM, as per Article 74 of constitution of India. The five-judge bench of the Supreme Court in the landmark case of DC Wadhwa v State of Bihar held that such a practice was a subversion of democratic norms and it was a colourable exercise of power amounting to the fraud upon constitution, hence unconstitutional.
Bad governance and constitution
There is frustration among common people as well as opinion makers with the way the country is being governed. Various solutions are being proposed. Some argue that federalism and secularism have made things worse and these two should be replaced with a unitary system and Hindu state. Others blame the constitution for all political ills. Neither is true.
These types of debates give a message that Nepal is a factory of producing different models of constitutions, none of them lasting long. Federalism, secularism, independence of judiciary, rule of law etc are the basic structures of this constitution. We cannot dismiss these structures just because we don’t like some of them. We have already enacted seven constitutions. We are already known as a nation that changes its constitution every few years without allowing any constitution to be implemented fully. Scrapping federalism might lead the country to another era of political turmoil.
Some people have also questioned the operation of local governments. While citing “Study on Corruption and Good Governance in Nepal” conducted by the Commission for the Investigation of the Abuse of Authority (CIAA), some argue that 753 local governments are the second most corrupt entities and therefore they need to be suspended. Again, the constitution is blamed for provisioning local governments.
Local governments are here to stay and they should be there. In fact, if we want to make Nepal a self-reliant nation, a larger focus and priority should be given to local bodies because Nepal’s growth has much to do with the self-sufficiency of the grassroots governments.
Let’s be clear about one thing: Our anger and frustration stems from unaccountable leadership, poor governance and failure of the political parties to drive the country toward the direction shown by the constitution.
As I have argued several times before, our efforts should be on implementing the constitution with the goal of making Nepal a self-reliant state in a decade or two. Let’s not think of the alternative of the current political system before we have even allowed this system to function fully.
We have to live with the current constitution as it hosts a plethora of provisions fostering good governance. The schemes of reservation to underprivileged groups of citizens, robust fundamental rights, rule of law, equality, equity or respect for identity and inclusive principles further protect and promote good governance. The only problem is political leadership has not been able to act as per the spirit of the constitution.
It’s worthwhile to quote a ruling of the Supreme Court of India in Keshvanand Bharati v State of Kerala (1973): The word ‘amend’ implied that “while any piecemeal change may be made, the old constitution cannot be totally destroyed or so radically changed as to lose its identity; the basic features cannot be amended.”
This is true about Nepal as well.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer with Dhanusha District Court, Janakpurdham.