Generally, the winter session of the Parliament would begin around the first or second week of December. This time, there is a possibility that it will start only in the second week of January. As the time is running out and even the opposition parties are insisting, the government is pushing the session for no reason. And recommended the ordinance twice within a few days.

On December 9, the Council of Ministers recommended the 'Ordinance to Amend Some Nepal Acts on Cooperatives, 2081', which was issued by the President on December 14. The meeting of the Council of Ministers, which was held till midnight on 26th January, recommended some Nepal Act Amendment Ordinance, an Ordinance to amend the Land Law and an Ordinance to amend the Investment Law. Leaders of the ruling party say that they are preparing to introduce an ordinance related to political parties with easy provisions for party division.

No advocate of a parliamentary system could support the Ordinance in principle. Depending on the situation and the content and purpose of the ordinance, sometimes they can accept it as 'okay or not'. This time there is no compelling situation for the government to bring an ordinance. Along with

, an ordinance has been introduced on such matters, its justification is not established. Rather, it reinforces the image of the government and the ruling coalition as unconcerned with the strengthening of the parliamentary system and the expectations of the common people. Under the guise of government frenzy, it is established that they are undermining the system. On the one hand, there is a group in the society that is dissatisfied with the parliamentary system itself. On the other hand, it is a sad situation for the two biggest advocates of this system to present their government priorities in such a way as to help weaken the system itself. The constitution itself has given conditional facility to the government to bring

ordinance. Our laws, traditions and universal beliefs have also determined its moral scope. But while the government is only using the constitutional facilities, arbitrariness is being established in the name of ordinance for the last few years. The country has started moving towards the rule of ordinance. The most sensitive issue is widespread misuse of constitutional facilities due to personal or party bias/bias of the rulers. These topics will be discussed in this article.

Constitutional feature

Parliamentary system is the essence of parliament - Parliament makes laws, the government implements them and the judiciary examines whether the actions of the executive are in accordance with the law or not. They are under public scrutiny for their work. Universal recognition and principle of separation of powers also says the same. The more fully this belief is followed, the stronger the parliamentary system becomes. However, legislation cannot anticipate all the complexities that may arise in the future.

means that the government may not be aware of a problem that will have to be addressed legally in the future. Whenever a problem arises, a new law may be required to resolve it or some provision of the old law may have to be modified. A fast track may be needed for necessary legislation at that time. The rationale of the ordinance is established here.

In this context, the issue of making laws by Parliament should be viewed from two angles. First, although it can be done quickly in some cases, Parliament generally follows a lengthy process when enacting legislation. There is no such thing as speeding in the parliamentary process. When the bill moves forward, the parliamentarians individually give their initial views, propose amendments to the bill, interact collectively, discuss with the stakeholders, and listen to the views of the parties and the opposition.

The relevant bill must be passed through the full session of the parliament, the relevant parliamentary committee, and again through the full session. In a bicameral parliamentary system like ours, both the houses have to complete the prescribed procedures. Months pass from the origin of the bill to the approval by the President. Some bills take years. Advocates of parliamentary system must accept this. It cannot be argued that the Ordinance was introduced because it would take a long time to advocate for this arrangement, and it would take a long time to enact it in Parliament.

Secondly, although the process is long, the parliamentary system ensures the participation of more parties in any subject or bill. The collective ideological recognition of different parties in the bills, the independent ideological recognition of MPs within the party, the opinions held by those MPs sensitive to their gender, religion, community, geography, stakeholders outside the House or people with experience and research on related matters participate in it.

Different media, intellectuals, even social media users debate and discuss several bills/topics that have entered the House. Thus, the beauty of the parliamentary system is the recognition that the conclusion reached after extensive conceptual and numerical brainstorming will benefit many and it will also be sustainable. Although proceeding through a lengthy process, efforts are made to ensure the adoption of as many stakeholders as possible. On the whole, arriving at a conclusion after extensive discussion and ideological friction and carrying it into effect is a basic tenet of a parliamentary system.

After completing all these methods and procedures, there is usually very little chance of even the immediate legislation being prepared. On the other hand, in some crises, the Parliament itself becomes unable to act. The Covid pandemic was one such period. Mainly, the session of Parliament is not going on all the time. In this way, if there is an immediate need for a law when the Parliament is not in session, the constitution has protected the facility of the government to introduce a law called an ordinance.

In Article 114 of the Constitution of Nepal, there is a provision that "The President may issue an ordinance on the recommendation of the Council of Ministers in cases other than when both houses of the Federal Parliament are in session". Such an ordinance is said to be legally valid. But after the promulgation of such an ordinance, the concerned minister will submit it in the first meeting of both houses of the Federal Parliament. If both Houses do not accept it, it will automatically become inactive.

President can revoke at any time. Both Houses will automatically become inactive after 60 days of sitting unless they are repealed or revoked by either of these channels. The message made clear by the Constitution and the Rules of the House is that no ordinance can last long. It is only a temporary facility available to the government for a legal solution to an immediate problem. The power or responsibility of making long-term laws belongs to the Parliament alone. Parliament's supremacy in law-making has been made clear by the provision that Parliament's approval is required to keep the Ordinance alive and that the Ordinance/Substitution Bill presented there should be carried forward by Parliament as a regular work.

Parliament adopts such and such procedures while enacting laws, but all of them are omitted in ordinances. As a result, there is a possibility of creating weak legal arrangements. Because, Ordinance is the concept of the Cabinet or the Prime Minister creating a law in his mind and issuing it and implementing it. The possibility of error is more likely to arise when the subject is created from the mind of a limited person, which should be concluded through multi-faceted brainstorming.

Ordinances were often issued during the autocratic reign of the king and in the absence of parliament. However, when there was a parliament, ordinances were rarely issued. According to the Federal Parliament Secretariat's study report titled 'Ordinances in Nepal: Arrangements and Practices', 2079, five ordinances were issued during the tenure of the first elected Prime Minister BP Koirala (2016-2017). After the multi-party system was restored in 2046, elections were held in 2048. The subsequent government also did not show much interest in the ordinance. In the ten years from 2048 to the dissolution of the House of Representatives in 2059, only 23 ordinances were promulgated.

In 2053 and 2056, ordinances were not issued. The Ordinance became binding when the House of Representatives was dissolved in 2059. The number also increased. Accordingly, 7 ordinances were issued in 2059, 27 in 2060, 33 in 2061 and 79 in 2062. After the promulgation of the interim constitution in 2063, only 39 ordinances were issued till 2072. In this too, the number of ordinances that became binding after the dissolution of the first Constituent Assembly is more. In 2069 alone, 16 ordinances were issued. After the promulgation of the constitution, the ordinances were not promulgated in 2072 and 2073. In 2074, 3 ordinances were issued.

During the government formed after the election of 2074, the number and intention of ordinances has started to become conceivable. There is opposition to the tendency to introduce ordinances without forgetting the basic meaning of the constitution. But the government does not seem to care about it. Rather, it seems that the Ordinance itself has a comfortable experience. From February 2074 to June 2078, it seems that 31 ordinances were issued during the tenure of KP Sharma Oli, who was in charge of the Prime Minister for the second and third terms consecutively.

In that order, some ordinances were repeated and repeated. 15 ordinances were issued during the time of Sher Bahadur Deuba, who became the Prime Minister after him, and three during the time of Pushpa Kamal Dahal Prachanda. In the time of Oli, who became the Prime Minister for the fourth term, within 6 months, ordinances have been issued under 4 titles.

When the government rules through ordinances, it interferes with the responsibilities of parliamentarians. Because it is their job to make laws. But even when the government brings ordinances, they do not make a strong counter-argument. While in the opposition, some MPs are heard to speak individually for formality, but the ruling party MPs prefer to remain silent. If MPs from the ruling party or the opposition are guided by their own conscience and collectively raise their voice against the unjustified ordinance, the strength of the government may decrease. The concept of ordinance can be more concrete if the parliamentarians can also take initiatives for constitutional or legal reforms.

Abuse of power

Most of the ordinances reflect the Prime Minister's request/bias. In the ordinance on political parties brought by the then Prime Minister KP Sharma Oli on 8 Baisakh 2077, the aim was to divide the then 'Socialist Party, Nepal'. At that time, the provisions of the law requiring 40 percent members in the central committee and the parliamentary party for the division of political parties were amended through an ordinance and replaced by 'and' with 'or'. However, after receiving the sign of party split, the party merged with Rashtriya Janata Party, Nepal overnight to form Janata Samajwadi Party, Nepal. After getting into controversy and the purpose also failed, the ordinance was withdrawn. 

On the one hand, the ordinance was issued against the concept of the ordinance at that time. On the other hand, at a time when the people are in fear of the corona epidemic and the 'lockdown' is continuing across the country, the ordinance was brought with the aim of dividing certain parties or disrupting the state apparatus, contrary to the expectation that the government will make legal arrangements to deal with the epidemic easily.

Sher Bahadur Deuba, who became the Prime Minister after him in July 2078, also repeated Oli's tendency to facilitate the division of the party. In the ordinance issued by him on August 2, 2078 with the aim of splitting CPN-UML and JSPA Nepal, a provision was made that 20 percent of the central members or parliamentarians would be required to split the political parties. According to which one group led by Madhav Kumar Nepal from UML and Mahanth Thakur from Jaspa Nepal divided the party.

On the one hand, the division of the party was going on, on the other hand, the government ended the session by abusing the facility of bringing an ordinance when the session was not in session. From the cabinet meeting on 32nd July 2078, it was recommended to end the session of the Federal Parliament from the night of the same day. And, the very next day i.e. on 1st of August, the Cabinet meeting recommended the ordinance on political parties to the President. It came into effect on the 2nd of August when it was issued by the President. It was seen that the narrow purpose of the government was that the law with the provisions it wanted should be made immediately and the purpose would be fulfilled. Proceeding through the parliamentary process, such an objective would not have been successful.

Since such ordinances are implemented immediately and the purpose is fulfilled, then they are left behind, whereas the law made by the Parliament is not like that. Like, the ordinance brought to divide UML and JSP Nepal got stuck after the objective was fulfilled. As a result, there was a void in the provision of party division in the Act on Political Parties for a long time. Due to the fact that there is no provision for division of parties in the Act, in 2081 Baisakh, JSP Nepal was divided by the group led by Ashok Rai.

Oli himself had issued ordinances related to the Constitutional Council several times when he was the Prime Minister for the second time. Through that, he made a provision in the Constitutional Council that he could easily make decisions according to his wishes. And, he was appointed to various commissions and constitutional bodies. The dispute is still pending in the Supreme Court. The Prime Minister's personal ego is also reflected in the

ordinance. An example is the Oath Ordinance. As the leader of the parliamentary party of the largest party in the House of Representatives, Oli became the Prime Minister for the third time on Baisakh 30, 2078, and the oath he took on the same day fell into controversy.

Oli did not utter the phrase 'promise' when he repeated the phrase 'I promise the truth' uttered by the then President Bidya Devi Bhandari during the swearing-in ceremony. After that, the president again said "I promise". But Oli replied that 'that doesn't matter'. When he omitted the word 'promise' while taking the oath, there was a demand that he should take the oath again saying that the essence of the oath was also omitted.

Although Article 80 of the Constitution has provisions regarding oaths to be taken in accordance with the federal law, such a law has not yet been enacted. It was running in the traditional format. The Prime Minister before Oli and he followed the words of the President when he became the Prime Minister. Realizing the need for a law on oath, Oli or other prime ministers could have fulfilled it by enacting a law from the House before that, but they did not do so. Instead, Oli himself issued an oath-related ordinance on the seventh day of becoming the Prime Minister after his oath was disputed.

He had become the Prime Minister, had taken the oath in a way. There was no rush for such a law as the Prime Minister was expected to remain in office for the rest of the term of the House. Oli could make laws from the House itself. But he issued the oath immediately, guided by the 'ego', which removed the words he had rejected. Interestingly, he had removed the word 'promise' which he refused to pronounce during the oath from the format of the oath prescribed in the ordinance.

Sometimes a situation is created where the country does not address it legally. Therefore, depending on the sensitivity of the context, sometimes one or two ordinances can be given the benefit of the doubt. But there are also examples of up to seven ordinances being issued at the same time (2078 Baisakh 21). Instead of bringing the same ordinance over and over again, it seems that the Parliament is not thinking of making a lasting law. The contents of the ordinances recommended by the Oli government this time will be discussed in the coming days, but pushing back the parliament session and introducing so many ordinances is just reckless. Whatever the joint government of traditionalist parliamentary parties like Congress-UML is doing, it is sure to respect this arrangement.