The government has recommended the ordinance on the Constitutional Council (functions, duties, powers and procedures) that President Ram Chandra Poudel sent back on Sunday to the President again without making any changes. The Cabinet meeting held on Monday decided to send the ordinance back as is. According to a source at Sheetal Niwas, since the ordinance was received only in the evening, there is a possibility that it will be issued after studying it.

Senior advocate Chandrakant Gyawali says that the essence of the Constitution is that the President cannot stop the government from sending an ordinance for the second time as is. There is no clear provision in the Constitution regarding what to do if the government sends back the ordinance sent back by the President exactly. 

Senior advocate Chandrakant Gyawali says that the essence of the Constitution is that the President cannot stop it after the government sends an ordinance for the second time in the status quo. Article 114 of the Constitution provides that the President can issue an ordinance on the recommendation of the Council of Ministers if it is necessary to do something in other situations than when both houses of the Federal Parliament are in session. There is a provision that after issuing such an ordinance, it must be submitted to both houses of the Federal Parliament and if both houses do not accept it, it will automatically become inoperative. If the House does not approve it, the President can revoke it at any time, or it will automatically become inoperative after sixty days of the meeting of both Houses if it is not revoked.  

However, according to Article 113 (3) of the Constitution, if the President finds it necessary to reconsider a bill other than the Finance Bill, he can send it back to the relevant House with a message for one time. There is no obligation that the Parliament must necessarily amend the returned bill. Article 113 (4) of the Constitution provides that the President must certify the bill within 15 days for the second time after addressing the President's concerns or sending it back in the status quo.

Baburam Kunwar, the President's legal advisor, who is also a senior advocate, says that the opinion contained in the first bill has been continued in this ordinance. "The President had earlier shown interest in the bill so that the constitutional spirit would be reflected in the bill, and now the same opinion has been continued in the case of the ordinance," he said. 

The Constitutional Council is a body formed under the chairmanship of the Prime Minister, which has a total of 6 members including the Speaker, Chief Justice, National Assembly Speaker, Leader of the Main Opposition Party and Deputy Speaker. The President has raised questions about how to determine the 'majority' in this structure. According to the President's interest, a decision in the 6-member council should have the support of at least 4 people (a majority of the total members). The President reminded the audience of the principles he had taken in the past when returning the ordinance for reconsideration on Sunday. Earlier, the President had sent the bill back on the same issue. The bill, which was passed by both houses of the federal parliament and reached for verification on 31 Ashad 2082, was returned by the President for reconsideration.

The proposed arrangement was even more controversial at that time. The bill had a provision in the bill that only 2 or 3 people could make a decision, citing examples of various situations. Even a provision was proposed to allow decisions to be made even if there was only a chairperson and one member. 

The bill itself contained four examples of situations where a meeting could be held and decisions made. It stated that – when the chairperson and five members are present in the council, decisions could be made by the vote of at least four, including the chairperson and at least three members; when the chairperson and four members are present, decisions could be made by the vote of at least three, including the chairperson and at least two members; when the chairperson and three members are present, decisions could be made by the vote of at least three, including the chairperson and two members; and when the chairperson and two members are present, decisions could be made by the vote of at least two, including the chairperson and one member.

The President had sent the bill back with a five-point message, saying that such a provision would weaken the essence of the majority. Later, the Sushila Karki-led government had even stopped the ordinance recommended by the same bill without issuing it.

This means that if 4 people are present, only 3 people can make a decision, which is not a majority of the entire membership. This time, the ordinance recommended by the Balendra Shah-led government is somewhat reformist than the one passed by the previous parliament. However, the concern that a majority of the entire number of members should decide the number of members has not been addressed this time either. "The double standard of sending the bill back on the same issue last time, withholding the ordinance, and issuing it immediately this time should not be followed by an institution like the President," said another official from the President's Office. "The essence of the Constitution is that it should be issued after being sent again, whether or not the government addresses it, and the President is in that mindset." The ordinance proposed by the government states that a meeting can be held if a minimum of 4 members are present and decisions can be made by a majority of the members present. This time, the ordinance recommended by the Balendra Shah-led government is somewhat reformist than the one passed by the previous parliament.

In the current law, there is a provision that a meeting can be held if the chairperson and at least four members are present. It has considered the number of 5 people as the quorum for a meeting. For the first time, the meeting has made it mandatory to make decisions unanimously. If there is no consensus, there is a provision that a decision can be made by majority only in the second meeting. When making a decision by majority, there is a provision that ‘it will be made by a majority of all members (6 people)’.

Senior advocate Gyawali says, ‘The President can check whether it is in accordance with the constitution and the law and send it back with a message for reconsideration. The executive can also not reconsider the ordinance sent by the President. However, after making a recommendation, there is a mandatory situation where the President has to approve it. All the credit, disrespect and accountability go to the government.’