Balen Government’s Ordinance Dispute: Is the President’s ‘Restraint’ Disregard for Mandate or Legal Safeguard?
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Intense controversy has erupted after ordinances recommended by the majority government of the Rastriya Swatantra Party (Raswapa) were halted at the President’s office.
As before, there are ongoing interpretations and analyses regarding the government’s objectives in introducing these ordinances and the meaning behind the President’s decision to restrain their approval.
Senior Advocate Radheshyam Adhikari, a former National Assembly member from Congress, suggests it would have been better not to introduce ordinances as the parliament is scheduled to convene within days.
“The decision to bring or not bring an ordinance just before a parliamentary session is the government’s responsibility,” Adhikari said, “However, if an ordinance is introduced and it conforms to the constitution, it can be adopted.”
Regarding this, President Ramchandra Paudel is consulting constitutional experts while his office has indicated a study is underway.
Can the President impose ‘restraints’ on ordinances?
“We do not know the specific content of the ordinances. If an ordinance seems unconstitutional, the President can discuss it with the Prime Minister,” says Senior Advocate Adhikari, “But it is inappropriate to halt the ordinance if it complies with the constitution and law.”
Opportunity for a Mandate-Based Government
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There are many precedents where Presidents have blocked various ordinances or recommendations in the past.
However, the current political landscape is different. Unlike before where parliamentary arithmetic was fluctuating, this government was formed with almost a two-thirds majority.
Some argue that the President’s attempt to ‘test’ and restrain ordinances recommended by the government contradicts the changed political scenario and public sentiment.
“It would be different if the government itself made corrections, but if the government insists on bringing an ordinance, it is difficult for the President to block it,” says Senior Advocate Purnaman Shakya. “Process, democracy, constitution, and law are primarily the domain of lawyers, the judiciary, and the intellectual community. The popular mandate is with Balen Shah, and citizens approve whatever he does.”
On this basis, the government has published a list of 100 tasks to be implemented immediately.
According to his analysis, since his party lacks a majority in the National Assembly, bills may face obstacles and the parliamentary process likely takes one to two months, for which there is little patience.
“However, regard for democratic procedures is necessary. Parliamentary procedure is critical and needs time to be followed,” he added. “Therefore, bringing ordinances by suspending parliamentary sessions is abnormal; this requires the President to summon the Prime Minister and ascertain the situation.”
Another constitutional expert Surya Dhungel emphasizes the necessity of preventing the government’s abuse of majority power.
However, he also believes this government, backed by a strong mandate, deserves an opportunity.
He said, “The government wants to expedite citizen services and democratic procedures within the framework of the constitution. The cabinet comprises many new and young members, making it necessary to develop parliamentary traditions and culture.”
President’s Discretion in Halting Ordinances
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Experts note that sensitive issues such as national sovereignty, security, constitutional violations, and citizen safety require thorough study and consultation regarding bills or ordinances.
Senior Advocate Purnaman Shakya points out that as the constitutional guardian, the President has the right to exercise discretion.
“In very serious matters, the President can halt or return an ordinance,” he said.
Before the formation of this new government, i.e., before Chaitra 13 (late March), one ordinance’s purpose was reportedly to cancel political appointments.
“Ordinances can be justified to deal immediately with squatters,” constitutional expert Lalit Basnet remarked, “But if a majority government can make various appointments and structural changes through parliament, why the rush now?”
Basnet explains that some ordinances may be issued or withheld depending on their content and necessity.
The President’s issuance of cooperative-related ordinances signals a decision based on the gravity of the matter.
“As the protector of the constitution, the President can employ constitutional discretion,” Basnet concluded.
Party Politics and Its Influence on the President
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Political parties have often been criticized for attempting to influence the President according to their interests when in government or opposition.
There are also accusations that rather than focusing on lawmaking, parties encourage the President to exercise discretion for self-serving or autocratic ends.
This time as well, opposition parties have urged the President not to approve the ordinances.
According to constitutional expert Surya Dhungel, such controversies and practices occur because Nepal’s democratic culture remains immature.
“Previously, ordinances were misused; the new government also wishes to work quickly, bypassing parliamentary practice and procedure,” he explained, “But can opposition parties demand the President not do so? They may be in government tomorrow, so this needs to be considered.”
Some believe that traditions of blocking ordinances related to the government’s internal activities could embroil the President’s institution in controversy.
Constitutional expert Basnet notes, “Previously, ordinances were abused to split and unite parties. This government’s aims may be legitimate, but processes, traditions, and norms must be respected.”