The caretaker government of Sher Bahadur Deuba is planning to introduce a controversial ordinance, which seeks the release of political prisoners like Nagarik Unmukti Party (NUP) advisor Resham Chaudhary, in a bid to woo the smaller party to remain in power.
An ordinance is a legal document or document rendered by the constitution but is in the form of delegated legislation that is germane like a law. Urgency in the subject is its main feature. Its pre-condition is whether the parliament session has ended or not. It can be enforced like a law. Its procedure is to be issued by the President on the recommendation of the Council of Ministers. Its rim is that the President can revoke or withdraw it at any time. It is expected to be submitted at the beginning of the next session of Parliament and approved within sixty days. An ordinance is called only after these topics are covered. The ordinance comes into effect as equal to the law.
The experience of Nepali politics is that ordinances are misused now and again. Especially when there is an absence of the parliament, then the ordinance is set forth. A system of government without people’s representatives is undemocratic by nature. An undemocratic government seeks the help of law for its legitimacy. In the absence of a law-making body, he resorts to ordinances. However, in the absence of people’s representatives, the ruler, that too, an undemocratic ruler, takes recourse to the ordinance as a legal mechanism, which is undemocratic by nature.
In Nepal, democracy was crushed through ordinances, democratic rights were suppressed. Therefore, the ordinance is considered as the rule against the rule of law. Especially, from the rule of panchayat and the monarchical parliamentary system of government to the reign of Gyanendra, it is depicted as a golden age for the ordinance and a dark night for the advocates of the law.
There is a surging voice against the issuance of the ordinance. But in my opinion, after the right and provisions to issue ordinances have been laid down in the constitution, the ordinance issued based on the same article of the constitution cannot be said to be contrary to the constitution, unconstitutional, or without rights. It seems that the comments made in this way are illegal in themselves. If the ordinance’s provisions are unconstitutional or without authority, then it should not be incorporated into the constitution. The fact that it is unconstitutional to put it in the constitution and that the power to issue ordinances is written in the constitution and that it has no right are contradictory. What is better is that issuing ordinances and governing according to ordinances is a model of practice that trambles democracy.
After the provision of ordinances in the constitution of Nepal, both the matter of no rights and the ordinance being unconstitutional should be unconstitutional and should be halted.
There has been a critical situation in which some cases have to be withdrawn to implement the issues that were politically concurred by the previous government. The existing legal system is very strict regarding the withdrawal of cases. It is not possible to withdraw the case as per the law and supreme court verdict too if there is a political agreement by maintaining the said legal system. Therefore, either we should stop making political agreements or the practice of bringing ordinances to change laws that hinder the implementation of agreements.
The practice of grooving on when a political agreement is reached, but reviling when an ordinance is issued to amend the law that hinders the implementation of the same agreement cannot be a political practice.
If the Cabinet of Ministers of the Government of Nepal is planning to accept the ordinance to be issued to remove the obstruction of the existing law to implement the political agreement made by the previous government, then it should be welcomed. The ordinance is focused on withdrawing the criminal cases filed after investigating the situation created due to the incidents during the agitation by the political parties, so that measure is correct and the ceremonial President should not obstruct the step of the government.
The time that has been chosen for the ordinance is inappropriate. Elections have just been held and a new government has not been formed. The day of the formation of the new government is on the door. The consensus of the ruling party has been reached. In order to facilitate the agreement of the ruling party, it is being tried to imply that the ordinance has come for the purpose of adding the support of some seats. But I am also clear that all the political parties in the country agree that the Tikapur incident is a political incident. If so, then it is a political incident.
Criminalizing political events and imprisoning political personalities in jail through false cases is not fair in itself. It is also clear that high-ranking police officers, including minors, also died tragically in the incident at that time. At the time of that incident registered it as a criminal case and started a criminal case. That case is currently under consideration in the Supreme Court after the District Court and the High Court verdicts. The state needs to be clear about this.
Is this case political or criminal? If this case is criminal, then the existing law cannot permit the withdrawal of this case. It is not even possible to bring an ordinance for withdrawal. If this case is political, I believe that in the past, it is a big mistake on the part of the state to prosecute and imprison this incident by treating it as a criminal. Due to the dual character of the state, the law and order of the country or the citizens should not be harmed. So, the state should announce whether the Tikapur incident is political or criminal. If it is political, it is the responsibility of the state to withdraw the case unconditionally and release the prisoners from jail. If this incident is criminal, then it is necessary for the state to defend itself against the case under consideration in the Supreme Court.
Finally, the state should clarify its position first, after that it will decide whether the ordinance is correct or not, and there is no need for others to dispute or divide it.
Devkota is a Senior Advocate and Member of the Constituent Assembly of Nepal.