Politics Of Ordinance

Dr. Narad Bharadwaj

The ongoing stalemate over the ordinance forwarded to the President’s Office for endorsement by the incumbent Prime Minister Sher Bahadur Deuba appears poised to give the otherwise smooth transfer of power a complicated twist. As the ordinance awaits for verification at the office of the President Bidya Davi Bhandari, the victorious left alliance and the outgoing Nepali Congress government are mired in altercation around whether the President should or should not endorse the proposed ordinance.
From the surface, this debate over the ordinance appears nothing more than a clash of political ego of two titans of Nepali politics. However, with each passing day, the controversy over this issue is threatening to escalate into a full blown political conflict. This controversy had emerged when Nepali Congress government decided to issue an ordinance to pave the way for the election of the National Assembly on the basis of single transferrable vote. The left alliance opposed this step of the incumbent government on the plea that the Constitution of 2015 had not envisaged the system of single transferrable vote in the election of the National Assembly. The Constitution of Nepal 2015 has a provision for only of majority and proportional system of election.

By raising controversy over the issue of ordinance, the NC-led government appears bent on creating hurdle in the way of the left alliance’s march to power. Now it is saying that it will not transfer power until the National Assembly is formed. In a majoritarian democracy, ones a ruling party loses majority, it becomes moral obligation for it to quit and make way for the majority party or coalition to step in. However, the NC has not only evinced its greed for power even after losing the majority, it has also flung the ethical norms of democracy to the four winds.
While forwarding the ordinance to the President’s Office for ratification, the Deuba government has clearly countered the existing constitutional provisions concerning the elections. Instead of admitting mistakes, Deuba government has been adamant on its position about the ordinance despite the advice of the President to withdraw it to be brought back for endorsement after making it consistent with the constitutional provisions. It is natural for the President to express her intention to act as per the letter and spirit of the constitution. Article 86 (2) of the Constitution of Nepal clearly says that National Assembly of the Parliament is formed with the eight representatives from each province out of which there should be three women, one Dalit and one from the marginal community. There is a provision for 59-member strong National Assembly and all the members are elected on the basis of first-past-the-post system.
The present situation of mess has been created due to the failure of the transformed Legislative-Parliament before its dissolution to enact a law governing the election of the National Assembly. The Constitution of 1990 had embraced the system of single transferable vote for the election of the National Assembly. But the complex requirement under federal system to make election inclusive has made this system incompatible with the present electoral system. This is the reason why the Constitution of Nepal 2015 has not envisioned the provision for single transferable votes.
It may be recalled that Nepali Congress had tried to get a law enacted from the legislative parliament incorporating the provision for single transferrable vote. But it was dropped eventually since there was no sufficient majority to get it endorsed in the parliament. By raising controversy over the ordinance, the NC government appears hell-bent on creating hurdle to the smooth transfer of power. It appears oblivious of the fact that the election to the House of Representative is not conditional to the election of the National Assembly. But the election of the National Assembly is dependent on the completion of the election of the House of Representatives and the provincial assemblies.
Previously, the alliance of Nepali Congress and CPN-Maoist Centre alliance was in favour of majority system while the UML was in favour of single transferable votes. But the change in the electoral equations led NC to discard its majoritarian position to embrace single transferable vote. In parliamentary system like ours, the President has to, in theoretical terms, endorse the ordinance forwarded by the PM. But the President needs a constitutional basis to do that. Since the present constitution has not envisioned a provision for single transferrable vote to elect the National Assembly, she is unwilling to endorse it. She could, however, return the ordinance to the PM with a request to bring it back after removing inconsistencies. But so far this has not happened.
As an outgoing Prime Minister, Sher Bahadur Deuba should not have done anything that weakens constitutional system and sets precedents for arbitrary decision making. But by going against the norms, he has started a losing battle. Instead of leading the country on a collision course, he should have taken initiative for reaching out to the victorious alliance to find mutually acceptable solution. The country is at the final stage of the implementation of the constitution. This is not the time to do anything that establishes practice of arbitrary decision outside the boundary of the constitutional provisions.
History proves that Sher Bahadur Deuba has made fatal miscalculations when he is at the helm of party or state affairs. He carries the stigma of splitting the Nepali Congress. He is blamed for causing the Maoist insurgency to escalate because of his snobbish treatment to their 40-point demands. He is accused of facilitating the takeover power by deposed king Gyanendra. He is accused of fostering nepotism and cronyism within his party and he is also blamed for breaking collaborative culture in Nepali politics. Now, the majority of the NC leaders and workers hold Deuba accountable for the unprecedented defeat in the just concluded general election.

Power of ballot
The left coalition, on the other side, has won an overwhelming majority in both the national and provincial elections by contesting election on the plank of stability and prosperity. Their agenda has overwhelmingly resonated with the people. The people, who were held captive to stagnation for nearly three decades of chaos and misrule, have risen up to unleash their power of ballot. In view of the wave of change sweeping the nook and corner of the country, Nepali Congress government would do well to take note of the spirit of the time and side-step to facilitate the transfer of power before it is too late.

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