The legislative session is likely to be very busy, approving ordinance and other bills pending from the previous session. The house session which was adjourned, is called by the President at the government’s recommendation on 31st January. The four ordinances, which were issued by the government during parliamentary recess, require to be tabled in the House as priority.
Before discussing parliamentary procedure in detail on how to convert an ordinance into law, let us first get some insights as to what an ordinance is along with its legal and constitutional framework.
What is Ordinace ?
An ordinance is the authority to the government to make laws when there is no Parliament. It’s the prerogative of the executive branch to act in critical emergencies when legal steps are urgently needed. Laying ordinance is the constitutional rights of the government. The president issues ordinance upon the advice of the council of ministers.
Constitutional Provision of issuing ordinance
The Constitution of Nepal, which was promulgated in 2015, entails provisions for issuing ordinances; besides, it lays down that any ordinance must be laid down before the House for approval. Article 114(1) states that the government can issue the ordinance in the absence of the house. The clause states that in the event when the subject, 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.
The article 114(1) states that government can issue the ordinance in the absence of the house. The clause states that in case, at any time, except when both Houses of the Federal Parliament are in session, circumstances exist which renders it necessary to take immediate action, the President may, on recommendation of the Council of Ministers, promulgate an Ordinance.
According to the Constitution, such an ordinance carries the same legal effect as an Act. The government must bring the substitution bill to the house within sixty days unless such ordinance will be ineffective. Article 114 (2) states, “The Ordinance promulgated pursuant to clause (1) shall have the same force and effect as an Act. Provided that every such Ordinance, – (a) Shall be tabled at the session of both Houses of the federal parliament held after the promulgation, and in case not adopted by both Houses, it shall, ipso facto, cease to be effective; (b) May be repealed at any time by the President; and (c) Shall, unless rendered ineffective or repealed pursuant to sub-clause (a) or (b), ipso facto cease to be effective at the expiration of sixty days after the day on which a meeting of both Houses is held.”
Process of issuing ordinance
An ordinance comes into effect by way of the following process:
It is necessary for a ministry to file a proposal with the Ministry of Law which is accompanied by a concept note and a policy paper and requests for an ordinance as a matter of legal urgency. Upon receiving the advice from the Ministry of Law, the Ministry is expected to submit the proposal to the Council of Ministers for approval of the principle.
Following the approval of the principle by the Council of Ministers, the draft ordinance should be forwarded to the Ministry of Law for additional drafting and onward clearance. The ordinance draft is prepared by the Ministry of Law and concurrence is obtained to that effect. Thereafter, the ministry in question is to submit the proposal to the Council of Ministers.
For those ordinances that are deemed necessary to be issued, the decision is made by the Council of Ministers and is recommended to the President of Nepal so that it can be issued. Subsequently, the Ministry of Law will ensure that this ordinance is printed in the Nepal Gazette.
The circumstances under which ordinance ceases to exist:
An ordinance ceases to exist under three conditions. Firstly, it can be revoked by the President. In order for an ordinance to become law, it must receive endorsement from the President and also get published in the National Gazette. So, if the House does not consent to the ordinance, it simply becomes devoid of any force or effect.
Government rulers produce ordinances and these are to be placed before the House for discussion during the first meeting of that parliamentary session. The government has one clear month to substitute an ordinance with an appropriate bill but if Parliament does not ratify the bill, then the ordinance becomes void.
Equally, if an ordinance is controversial, there is simply no legal order for its enforcement. Should a court determine the ordinance to be illegal, it shall have no legal impact. Trend of issuing Ordinance in NepalAccording to the 2022 report titled “Ordinances in Nepal: Provisions and Practices”, five ordinances were issued during the tenure of Nepal’s first democratically elected Prime Minister, B.P. Koirala (1959–1960).
Following the restoration of the multi-party system in 1990 and the subsequent elections in 1991, successive governments displayed little interest in issuing ordinances. Between 1991 and the dissolution of the House of Representatives in 2002, only 23 ordinances were issued over a decade.
Notably, no ordinances were issued in 1996 and 1999. However, after the dissolution of the House in 2002, ordinances became a necessity, leading to a significant increase in their numbers. For instance, 7 ordinances were issued in 2002, followed by 27 in 2003, 33 in 2004, and 79 in 2005. After the promulgation of the Interim Constitution in 2007, only 39 ordinances were issued up to 2015. Most of these were necessitated by the dissolution of the first Constituent Assembly. In 2012 alone, 16 ordinances were issued.
After the promulgation of the Constitution in 2015, no ordinances were issued in 2015 and 2016. However, in 2017, three ordinances were issued. Following the elections of 2017, the trend and intent behind issuing ordinances became increasingly concerning. Critics have argued that the government has disregarded the constitutional spirit by resorting to ordinances. However, this criticism has seemingly had little impact on the government’s approach. Instead, the use of ordinances appears to have become more frequent and convenient.
During the tenure of K.P. Sharma Oli, who served as Prime Minister continuously for twoterms terms from 2018 to 2021, a total of 31 ordinances were issued. Some of these were repeated multiple times. Subsequently, during Sher Bahadur Deuba’s tenure as Prime Minister, 15 ordinances were issued, while three were issued during Pushpa Kamal Dahal (Prachanda)’s term.
In Oli’s fourth term as Prime Minister, within less than six months, four ordinances have already been introduced under different titles. The first ordinance focuses on “Promoting Good Governance and Streamlining Public Services,” under which the government plans to amend at least 12 existing laws.
The second ordinance addresses “Improving the Economic and Business Environment and Promoting Investment,” involving changes to certain legal provisions.
The third ordinance involves renaming the “Investment Act” to the “Public Enterprise and Public Investment Management Act,” according to officials familiar with the matter.
The fourth ordinance deals with the “Procedures for Economic and Financial Accountability.”
The fifth ordinance pertains to amendments to the Land Act. Since the promulgation of the Constitution in 2015, the trend of issuing ordinances to bypass parliamentary approval has become widespread.
This practice has been criticized for misusing the emergency powers of the executive, often to serve the vested interests of political parties. For example, one such instance was the ordinance amending the Political Parties Act of 2017, which was introduced under the leadership of Sher Bahadur Deuba to facilitate the division within the UML party.
Prior to this, during Oli’s government, an ordinance was issued to relax the quorum requirements for the Constitutional Council, effectively undermining the mandatory presence of the Leader of the Opposition and the Speaker of the House.
Controversial Ordinance
The government led by former Prime Minister KP Sharma Oli in his third term came under intense scrutiny for issuing a series of controversial ordinances that many critics viewed as politically motivated. These actions set a precedent that would later be mirrored by subsequent administrations, leading to widespread debates about the misuse of executive powers.
The Constitutional Council Ordinance
On December 15, 2020, Prime Minister Oli convened a meeting of the Constitutional Council, despite the absence of then-Speaker Agni Prasad Sapkota and then-opposition leader Sher Bahadur Deuba. The same day, the government introduced an ordinance to amend the Constitutional Council Act (Functions, Duties, and Procedures) 2010. The amendment altered a critical provision, allowing a majority of the Council’s members to convene a meeting, as opposed to the original requirement that five out of six members be present for quorum. President Bidya Devi Bhandari swiftly endorsed the ordinance.
This change enabled the Oli government to unilaterally appoint members to various constitutional bodies, a move that drew significant criticism for undermining democratic processes. The appointments were seen as an attempt to consolidate power and circumvent the necessary checks and balances within the system.
The First House Dissolution and Reinstatement
Shortly after amending the Constitutional Council Act, Oli dissolved the House of Representatives on December 20, 2020. This action sparked nationwide protests and was widely criticized as unconstitutional. On February 23, 2021, the Supreme Court reinstated the dissolved House, marking a significant judicial rebuke of Oli’s actions.
Despite this setback, the reinstated House failed to pass the ordinance. Undeterred, Oli reintroduced it on May 4, 2021, making additional appointments. The persistence of these unilateral actions further fueled political instability and public discontent.
The Citizenship Ordinance
On May 22, 2021, Oli dissolved the House of Representatives for the second time. The following day, he issued an ordinance related to citizenship. This move was widely perceived as an attempt to garner support from Madhesi parties to stabilize his government amidst internal divisions within his own party, the Nepal Communist Party (NCP). However, the Supreme Court intervened, halting the ordinance process and declaring it politically motivated. This judgment underscored the judiciary’s role in checking the executive’s overreach.
The Budget Through an Ordinance
On May 29, 2021, the Oli-led caretaker government introduced the annual budget via an ordinance. This action, bypassing parliamentary debate and approval, drew severe criticism from intellectuals and civil society. Many saw this as a blatant disregard for democratic norms and an affront to legislative processes.
Sher Bahadur Deuba’s Administration
Following Oli’s ouster on July 13, 2021, Sher Bahadur Deuba of the Nepali Congress assumed the role of prime minister. Despite promising to rectify the unconstitutional practices of the previous administration, Deuba’s government quickly resorted to similar tactics.
On August 18, 2021, just a month into his tenure, Deuba’s government issued an ordinance to amend the Political Parties Act-2017. This amendment reduced the threshold for splitting a political party from 40 percent of parliamentary party members and central committee members to just 20 percent. The ordinance facilitated the formation of the CPN (Unified Socialist) by dissidents from the CPN-UML and the Loktantrik Samajbadi Party, led by Mahantha Thakur, after splitting from the Janata Samajbadi Party. Once these objectives were achieved, the ordinance was rendered invalid.
Ironically, Deuba’s administration had previously criticized a similar move by Oli to amend the same Act. Oli’s attempt to reduce the 40 percent threshold to “either in the central committee or in its parliamentary party” had been met with widespread opposition. Deuba’s ordinance, therefore, highlighted the continuity of political expediency across administrations.
The National Criminal Procedure Ordinance
In a more recent instance, the government introduced an ordinance on December 12, 2022, to amend the National Criminal Procedure (Code) Act, 20. The Cabinet had decided on December 11 to pave the way for withdrawing cases against individuals, including Resham Chaudhary—alleged mastermind of the 2015 Tikapur incident—and leaders and cadres from the CK Raut-led Janamat Party and the Netra Bikram Chand-led Nepal Communist Party. The Tikapur incident had resulted in the deaths of eight people, including a toddler, making the ordinance particularly contentious.
Critics from various quarters labeled this move as an attempt to pardon individuals convicted of heinous crimes. The ordinance’s justification, purportedly aimed at political reconciliation, was widely seen as a politically motivated maneuver to secure alliances and appease certain factions.
