PM Oli’s Ordinance Rule 2.0

Ordinance is a feature of democratic governance that serves as a mechanism for crisis management and urgent measures in exceptional situations. However, relying on ordinances for governance reflects a tendency toward democratic despotism, which is unacceptable. The “rule by ordinance” symbolises authoritarianism.

Prime Minister KP Sharma Oli has been controversial and infamous when it comes to the use of ordinance. He is considered an expert in its usage. Ruling by ordinance has always been his preference.

During his previous tenure, Oli repeatedly issued ordinances bypassing the constitution, leading to legal challenges at the Supreme Court’s constitutional bench. Despite this, he continues governing through ordinances, while effectively holding the sovereign parliament hostage.

It is not that the government is barred from issuing ordinances. However, it is baffling what extraordinary circumstances led to these urgent legal amendments, especially when the regular winter session of parliament is set to convene.

Typically, the winter session of parliament begins in the first or second week of December. This year, however, it is supposed to commence January 24. Despite the passing of time and repeated calls from the opposition parties to begin the session, the government has been delaying it unnecessarily while swiftly issuing ordinances to assert its power.

Strategic games like Bagchal or chess depend not only on one’s moves but also on anticipating the opponent’s. In these games, strategies are developed based on the opponent’s moves — a concept known as “game theory” and applied in fields such as mathematics, economics, political science, diplomacy, and international relations. Oli appears to be employing this theory within his party and government, capitalising on weaker opposition forces.

The recent political developments under the Prime Minister raise a profound question: How long can the practice of undermining democracy under the guise of protecting it persist? KP Sharma Oli, renowned as “Ba” in Nepali politics, has sparked significant debate not just within his party but also among coalition partners and the broader political landscape with his autocratic governance style.

His tendency to invoke “democracy” while practicing authoritarianism has transformed the CPN-UML from a democratic party into “Oli Private Limited”. For Oli, unilateral rule is a source of satisfaction, with democratic practices seemingly confined to the party’s constitution alone. His obsession with issuing orders and ordinances exemplifies this transformation.

What is a democratic parliament? It is a platform for freedom of expression, the right to debate, and a space for differing opinions. But, under the UML government led by Oli, democracy seems to revolve solely around Oli’s interests, overshadowing broader democratic principles. This has left even the largest opposition party, the Nepali Congress, marginalised. 

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Explainer: What is ordinance?

Does anyone in “Ba’s” party and government have the liberty to dissent, question, or express differing views? Is Oli’s decision the ultimate truth for all? His recent actions such as expulsion and suspension of his party members also explain these questions.

Despite having a sovereign parliament, the government is exploiting constitutional emergency provisions to issue ordinances. If governments continue to interpret the constitution for selfish gains, it risks reducing the constitution to a mere piece of paper.

The constitution does provide conditional provisions for issuing ordinances. However, our traditions, systems, and global norms also establish moral boundaries for their use. The government’s repeated reliance on these constitutional provisions for ordinances has led to unchecked misuse under the guise of necessity.

An ordinance is a temporary legal instrument granted as an exception when immediate legislative action is required. Yet, the government has begun to treat exceptions as necessities. Issuing five ordinances to amend 27 laws simultaneously is a testament to the government’s authoritarian tendencies. Among these, President Ramchandra Paudel withheld approval of one of those — the land-related ordinance [which is also endorsed now].

No advocate of the parliamentary system can support ordinances in principle. They can only be accepted under exceptional circumstances based on their context, content, and purpose. This time, however, there was no compulsion to issue ordinances.

Yet, to flex their power, both Oli and the Nepali Congress jointly introduced those ordinances. This misuse of authority underscores the extent of constitutional manipulation and power imbalances by the ruling parties.

Article 114 of Nepal’s Constitution grants the federal government, and Article 202 grants provincial governments the authority to issue ordinances during emergencies. But Oli’s ordinances do not address any genuine emergency or disaster.

Article 114 (1) If, at any time, except when both Houses of the Federal Parliament are in session, circumstances exist which render it necessary to take immediate action, the President may, on recommendation of the Council of Ministers, promulgate an Ordinance.

Article 202 (1) If, at any time, except when the State Assembly is in session, a circumstance exists which renders it necessary to take immediate action, the Chief of State may, on the recommendation of the State Council of Ministers, promulgate an Ordinance.

The phrase “immediate action” in Articles 114 (1) and 202 (1) remains undefined. The absence of clarity allows the government to exploit this loophole to fulfill narrow self-interests. Yet for anybody who understands and upholds the spirit of the constitution, this lack of clarity is not significant.

Governance through ordinances undermines the role of parliament and the representatives elected by the people, turning ordinances into the beginning of authoritarian rule. The government’s reliance on temporary legal instruments to serve its interests erodes the essence of the rule of law and diminishes accountability.

Although ordinances hold the status of laws, they are temporary and must be ratified by parliament within 60 days of its session. Failure to do so renders them null and void. Their frequent use does raise the question: Why are they so appealing to the government? One reason could be Nepal’s cumbersome legislative process.

In a democratic system, the government must prioritise institutional mechanisms over temporary measures like ordinances. Allowing such practices to become routine would undermine the legislative authority of parliament and the principles of power separation embedded in the constitution.

The overuse of ordinances by the government is not only a misuse of authority but also a disregard for the spirit of parliamentary democracy. The executive branch should be accountable to the legislature. However, by bypassing due parliamentary processes, the executive undermines the foundational principles of democratic governance, weakens the system of checks and balances, and threatens the parliamentary system itself.