Government Issues Ordinances at Session Start by Sidestepping Parliament

April 28, Kathmandu — On August 17, 2021 (1 Bhadra 2078 BS), the then Sher Bahadur Deuba-led government introduced an ordinance allowing a party split with the support of 20 percent of lawmakers or central committee members. At that time, Ravi Lamichhane publicly opposed it on social media.

Lamichhane had criticized, “Those who opposed Oli’s ordinance yesterday are now bringing one together — a shameful and undemocratic step. Bypassing Parliament and allowing party splits with 20 percent is damaging to democracy’s reputation. Ugh… the same motives, but different faces entering and exiting Singha Durbar alternately.”

Back then, Lamichhane was a media figure. About a year later, he entered politics by forming the Rastriya Swatantra Party (RSP) to reform such systemic problems.

Later, on December 10, 2022 (Mangsir 25, 2079 BS), the government issued the first amendment ordinance to the Muluki Criminal Procedure Code, which resulted in granting amnesty to Resham Chaudhary in a criminal case.

Responding to that, Lamichhane posted, “How long will the new Parliament take to convene? One week? Two? Three? Was there an emergency that it couldn’t wait a week or two? This ordinance undermines the spirit of the new mandate. It attempts to curb the new Parliament’s authority. This is extreme political shamelessness. It must be revoked immediately.”

Lamichhane’s party had won 21 seats in the 2022 election and expanded to 182 seats by 2026, currently running nearly a two-thirds majority government.

On Monday, the government led by Balendra Shah decided to issue two ordinances, which are reportedly strongly supported by the Rastriya Swatantra Party presence in Parliament. Shah has not publicly commented on this, but sources say he supports the move.

Following Monday’s Cabinet meeting, government spokesperson Sasmit Pokharel announced only three official decisions: allowing private competition in the Security Printing Press, appointing Narayan Datt Paudel as the Armed Police IGP, and approving customs regulations.

However, the Cabinet also decided to issue two ordinances, which were only made public after the Cabinet submitted recommendations to the President’s Office on Tuesday.

The two ordinances recommended concern the Constitutional Council and cooperative affairs. Though the President is currently reviewing them, their specific details have not been disclosed.

Constitutional scholar Tikaram Bhattarai emphasized that courts have repeatedly warned against issuing ordinances on long-term significant issues, but the government appears to ignore this caution.

Without Parliament in session, it is unclear that any urgent matter requires ordinances. The President bears the responsibility to implement ministry recommendations, so the ordinances might be promulgated within a few days.

Issuing two ordinances without any legislation passed by a strong government formed after elections sends a negative message.

Constitutional expert Dr. Bipin Adhikari said, “Bringing ordinances this close to a parliamentary session is inappropriate. A government with such a strong mandate shouldn’t revert to old methods.”

Use of ordinances is not considered good parliamentary practice. If a government with nearly two-thirds majority uses ordinances bypassing Parliament, the concern lies not in procedure but in intent and commitment to democracy. The main opposition Nepali Congress has termed this move a dangerous sign for democracy.

While Nepal’s Constitution does not fully prohibit the issuance of ordinances, their use is strictly an exception. Dr. Bhattarai stated, “Halting regular sessions to issue ordinances is a misuse of constitutional provisions and an abuse of the people’s mandate.”

Ordinarily, ordinances serve to maintain governance only when Parliament is not functioning and no legal alternatives are available. Using ordinances for long-term policies undermines parliamentary supremacy and institutional balance.

The government could have convened Parliament and passed legislation through the fast-track process, but instead opted for ordinances. Dr. Adhikari remarked, “The fast-track parliamentary route would have been better than ordinances.”

Even though Parliament was scheduled to convene from March 30 (Chaitra 17), the session called by the President was withdrawn by the government, marking the first such incident in Nepal’s parliamentary history. Instead, the government chose to govern through ordinances, bypassing parliamentary procedures.

Dr. Bipin Adhikari added, “It is better to take the parliamentary route to enact laws from scratch rather than rely on ordinances.”

Governing by ordinances is not new in Nepal. From 2015 to 2022 under the consolidated constitutional framework, 49 ordinances have been issued.

Sensitive topics like the budget have repeatedly been enacted through ordinances despite having a 74-year tradition of parliamentary approval. Eleven budget ordinances have been passed, including on taxation and revenue collection without parliamentary debate, which signals a democratic deficit.

These trends show that political pressure and party compromises have sustained ordinance governance practices, and the current government is no exception.

Unlike before, the current government is strong with a majority in Parliament and the legislative capacity to enact laws properly. Yet, its choice of ordinances reflects a desire for power rather than actual legal necessity.

Although the government has the authority to issue ordinances, this should not distort constitutional integrity or deceive the spirit of the law.

Ordinances are intended strictly as temporary laws when Parliament is not in session; using them for long-term policymaking is inappropriate and courts have warned about this practice.

Dr. Bhattarai noted that courts have cautioned against ordinances on long-term significant issues, but the government has not heeded these warnings.

Should ordinances come with ill intent, courts may intervene, and the President has a review role in such cases.

Earlier ordinances in 2020 related to political parties and the Constitutional Council sparked controversies due to their contentious provisions and ultimately failed to pass Parliament.

The 20 percent provision for party splits and Constitutional Council appointments by three-member majority were criticized. Following the annulment of those ordinances, the older laws needed reinstatement.

Dr. Adhikari emphasized again, “It is better to legislate through Parliament than issues ordinances for laws that do not currently exist.”

Past ordinances raised questions on power balance and institutional autonomy. While they are legal documents, they have also served as political tools.

The current government is repeating past mistakes, which undermines its claim to political reform. A government with two-thirds majority bypassing Parliament shows distrust of the public mandate. Parliament is the representative institution of that mandate.

The government has the strength and capacity to legislate effectively through Parliament.

Separation of powers is a cornerstone of democracy; balance among the executive, legislature, and judiciary is crucial. Relying on ordinances disrupts this balance and increases institutional conflicts.

In 2022, the National Assembly formed a study committee that recommended ordinances be used only under urgent circumstances, approved immediately once the session starts, avoided on long-term policy, and prevented repeated use.

Democracy is strengthened not only by constitution and laws but also by practice. Undermining democratic values through abuse of constitutional provisions harms democracy in the long run.

Currently, issuing ordinances is not a literal constitutional violation, but whether the spirit of the Constitution is upheld remains questionable. Using ordinances to bypass Parliament might be easier for the government but is not the best approach for democracy.

A strong government should have exercised restraint and constitutional norms instead of taking paths typical of coalition governments in fragile parliaments, which would have been a commendable example.