Balen Government Ordinance Controversy: Is Presidential ‘Restraint’ Disrespecting the Mandate or Legal Protection?
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Sharp controversy has erupted after the majority government of the Rastriya Swatantra Party (Raswapa) saw its recommended ordinances withheld at the President’s office.
As previously, debates and analyses are ongoing to understand the government’s rationale for introducing these ordinances and the implications of the President’s decision to withhold them.
According to senior advocate Radheshyam Adhikari, a former member of the National Assembly from the Congress party, it would have been better not to introduce ordinances just days before the parliamentary session.
“Whether to bring ordinances when the parliament is about to convene is a government responsibility,” Adhikari explained. “However, if the ordinances comply with the constitution, the government has the authority to present them.”
President Ramchandra Paudel is consulting constitutional experts regarding this issue, and his office has confirmed ongoing review.
Does the President have the authority to ‘restrain’ ordinances?
“We are unaware of the ordinance content. If it appears unconstitutional, the President can discuss it with the Prime Minister,” senior advocate Adhikari said, “but if it aligns with the constitution and laws, withholding it would be inappropriate.”
Opportunity for a Popularly Mandated Government
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There are numerous past instances of Presidents withholding various ordinances and recommendations.
However, the current political environment is different. Unlike past governments formed through shifting parliamentary alliances, this government holds nearly a two-thirds majority.
Some argue that the President’s attempt to ‘test’ and restrain ordinances recommended by the government is contrary to the changed political landscape and popular sentiment.
“It’s different if the government corrects itself, but once it decides to present an ordinance, it becomes difficult for the President to withhold it,” senior advocate Purnman Shakya said. “Process, democracy, constitution, and law are primarily subjects of analysis and concern for lawyers, judiciary, and intellectuals. Popular mandate belongs to Balen Shah, and citizens have been supporting his actions.”
On this basis, the government has published a list of 100 tasks to be carried out immediately.
According to his analysis, since the ruling party does not hold a majority in the National Assembly, bills could be stalled and parliamentary processes could take at least one to two months — a delay the government apparently cannot afford.
“However, attention to procedure is necessary in democracy. Rules of procedure are important and require time to follow,” he added. “Therefore, bringing ordinances by postponing a parliamentary session is unusual, and it is necessary for the President to summon the Prime Minister to understand the situation.”
Constitutional expert Surya Dhungel has stated a need to restrain government actions when there is abuse of the majority.
Nevertheless, he believes this government deserves an opportunity given its overwhelming popular mandate.
He said, “The government has expressed a desire to deliver services and implement democratic processes fully within the framework of the constitution. Many members are new and young; development of parliamentary traditions and culture is necessary.”
Presidential Discretion in Withholding Ordinances
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Experts note that sensitive issues such as national sovereignty, security, constitutional violations, and citizen safety require careful study and consultation regarding bills or ordinances.
Senior advocate Purnman Shakya states that as the constitutional guardian, the President has the right to exercise discretion.
“If the matter is extremely serious, the President can withhold or return the ordinance,” he explained.
The ordinances are also said to aim at annulling political appointments before the formation of this new government, specifically before Chaitra 13 (Nepali calendar).
“Ordinances have justification for urgent arrangements for squatters,” constitutional expert Lalit Basnet said, “but why hurry for various appointments and structural changes when a government with majority can handle these through parliament?”
Basnet explains that depending on the nature and need, some ordinances can be issued while others withheld.
The President has also issued a cooperative-related ordinance, indicating decisions based on the gravity of the subject.
“As the constitutional protector, the President is empowered to exercise constitutional discretion,” Basnet adds.
Party Politics and Influence on the Presidency
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Political parties have been criticized for attempting to influence the President to serve their interests when in power or opposition.
There are also concerns that rather than legislating, President’s discretion is being manipulated to pursue arbitrary agendas.
Opposition parties have likewise called on the President not to issue ordinances this time.
Constitutional scholar Surya Dhungel observes that such practices and conflicts arise due to the still-maturing democratic culture in Nepal.
“Past misuse of ordinances occurred, and the new government also seems eager to act hastily, bypassing parliamentary processes,” he said. “However, can opposition parties rightfully ask the President not to do so, considering they may be in government tomorrow? This must be taken into account.”
Some perceive that the tradition of restraining internal administrative ordinances could end up putting the presidential institution itself into controversy.
Constitutional expert Basnet added, “Previously, ordinances were abused to split and align parties. This government’s objectives may be legitimate, but procedures, traditions, and norms must be followed.”