April 21, Kathmandu – Within 24 hours of President Ramchandra Paudel sending the ordinance back with a message requesting reconsideration, the government has once again recommended the same ordinance to the President. Rejecting the President’s move to return the ordinance with a message, the government has resubmitted it. Now, the President appears to have no option but to issue the ordinance. The Constitution allows a bill passed by both houses of Parliament to be sent back once for reconsideration, but there is no clear provision for returning an ordinance recommended by the Council of Ministers for reconsideration.
The President returned the ordinance citing the need to uphold the spirit of the Constitution and the majority decision-making process within the Constitutional Council. Dr. Vijay Mishra, President of the Nepal Bar Association and a law professor, responded on Sunday stating that the government must respect the President’s message; however, once the ordinance is resubmitted, the President cannot block it. He said, ‘If the government resubmits the ordinance, the President cannot reject it—they must issue it.’ On Monday, the Cabinet meeting decided to once again recommend the Constitution Council (First Amendment) Ordinance 2083, government spokesperson Sashmit Pokharel confirmed.
According to Pokharel, the ordinance was sent back without any amendments. While seven of the eight ordinances recommended by the government were promulgated, President Paudel did not issue the ordinance concerning the Constitutional Council. Without addressing the President’s message, the government has resubmitted essentially the same ordinance, signaling a disregard for the President’s concerns. The President had previously returned ordinances as well.
Following that, the government had been less attentive to the ordinance; however, this time it acted promptly to demonstrate its position. What is the President’s concern? While the government has framed it as a matter of ‘ego,’ analysts argue that the President’s return of the ordinance was a defense of democratic values and power balance. According to officials at Sheetal Niwas, the President’s letter mainly questioned the principle of the requisite quorum and the multiparty system.
The ordinance proposes that meetings of the Constitutional Council would only be valid with 50 percent member attendance, including the Chairman (Prime Minister), and decisions would be based on a majority of that quorum. The President concluded that this provision would undermine the very foundation of the Constitutional Council. The letter reminded that the Supreme Court’s full bench had previously ruled that the multiparty system in the Constitutional Council must be preserved and recommended revising the ordinance to safeguard power balance. What is the Prime Minister’s interest?
Ignoring the President’s suggestion, the government’s reason for resubmitting the ordinance without amendments remains unclear—whether it reflects a policy stance or is a shortcut sought by Singha Durbar (the government complex). Even though the new election gave the Rastriya Swatantra Party nearly a two-thirds majority, it is understandable that the Prime Minister is concerned about the Constitutional Council’s structure potentially affecting its decision-making capacity. The Constitutional Council recommends key appointments from agencies like the Commission for the Investigation of Abuse of Authority, the Election Commission, and the Supreme Court. Under current law, appointments cannot proceed without the consent of the opposition leader or the Chief Justice.
Therefore, there are suspicions that this ordinance seeks to reshape the Council’s structure to favor the government and allow it to place preferred individuals in sensitive positions. However, the government and the Prime Minister’s Secretariat argue that this measure is essential to relieve the Council’s prolonged deadlock. They claim that important constitutional bodies have remained vacant for extended periods due to the absence of opposition leaders or the Speaker, adversely affecting state operations.
Defending its move as a necessity to break an impasse, the government argues that ‘the current arrangement is necessary because consensus or old quorum numbers hinder progress.’ These issues have now been sent back to Sheetal Niwas for further consideration. According to Article 113(4) of the Constitution, if the President returns a bill once, Parliament must certify it within 15 days if it is resubmitted unchanged. However, Article 114(1) treats ordinances with some ambiguity and difference.
The President does not enjoy such discretion. Legal experts say that although there is a tradition for the President to promulgate ordinances recommended by the Cabinet, there is no clear legal obligation to reissue ordinances that may violate the Constitution or conflict with Supreme Court rulings. If the President, as the guardian of the Constitution, chooses to withhold or reject the ordinance again at Sheetal Niwas, it would mark a pivotal turning point in politics. This could be interpreted as the beginning of a new cold war between the Executive and the Presidency.
