Introduction
In a constitutional democracy, laws are ordinarily enacted through Parliament after debate, deliberation and voting. However, situations may arise where urgent legal action is necessary while Parliament is not in session. To address such extraordinary circumstances, the Constitution of Nepal provides for the issuance of an Adhyadesh (Ordinance).
The ordinance making power is an exceptional constitutional mechanism designed to ensure continuity of governance during parliamentary recess. At the same time, this power is subject to strict constitutional limits to preserve democratic accountability and parliamentary supremacy.
Meaning and Definition of Ordinance
An ordinance is a temporary law promulgated by the President, on the recommendation of the Council of Ministers when the Federal Parliament is not in session and immediate action is required. Although an ordinance carries the same force and effect as an Act of Parliament for a temporary period, it is not a substitute for the normal legislative process. It is an emergency legislative instrument intended only for urgent governance needs.
In simple terms, an ordinance allows the government to respond quickly when Parliament cannot immediately meet.
Constitutional Provision Relating to Ordinance
The power to promulgate ordinances is contained in Article 114 of the Constitution of Nepal. Under this Article, the conditions under which ordinance can be issued are:
- Both Houses of the Federal Parliament are not in session.
Neither the House of Representatives nor the National Assembly should be in session. If Parliament is in session, normal legislation must be pursued through bills. - Circumstances exist which require immediate action.
There must be urgency that cannot reasonably wait until Parliament reconvenes such as: economic crisis, public health crisis, natural disaster response, security concerns, immediate regulatory necessity.
The President may promulgate an ordinance on the recommendation of the Council of Ministers. This means the President does not act independently, the constitutional trigger comes through the elected government.
Every Ordinance must be presented before both Houses of the Federal Parliament at the session held after its promulgation. If it is not approved by both Houses, the ordinance automatically loses its effect. In addition, unless it is either approved by Parliament or repealed earlier, the ordinance ceases to be effective at the expiration of sixty days after the day on which a meeting of both Houses of the Federal Parliament is held.
Though temporary and conditional, once promulgated it has the same force and effects as a law passed by Parliament. Government authorities may implement it immediately. Thus, parliamentary approval remains essential.
What Constitutional Powers does the President have in Ordinance Promulgation?
The President, under the Constitution of Nepal, exercises the ordinance power in a formal and procedural manner. Upon the recommendation of the Council of Ministers, the President promulgates the ordinance, thereby giving it official legal recognition. In doing so, the President authenticates the constitutional process through which the ordinance derives its legal force. Once promulgated, the ordinance is published and comes into operation in accordance with law, making it enforceable like an Act of Parliament. Article 114(2) (b) of the constitution also gives power to the President to repeal the ordinance at any time. The President can send back, or “sit on,” ordinances perceived to violate the constitutional spirit.
However, the President’s authority is not personal or discretionary in the ordinary political sense. There are certain limitations to these powers:
- The President cannot issue ordinance without Cabinet recommendation.
- The President cannot act on personal discretion in legislative matters.
- The President cannot make ordinance permanent without Parliamentary approval.
What happens if the President refuses to promulgate or withholds an ordinance?
As per the Constitution, President is generally expected to act on the recommendation of the Council of Ministers. If the President refuses or delays promulgation, it raises significant constitutional concerns.
- Constitutional conflict between executive and ceremonial head
- Judicial review by the Supreme Court
- Political Pressure or re-submission by the government
The Constitution does not explicitly grant the President veto power over ordinances, making prolonged refusal constitutionally questionable.
Conclusion
The ordinance mechanism under the Constitution of Nepal is designed as a limited constitutional exception to address urgent legislative needs when Parliament is not in session. It enables the executive to respond without procedural delay, but only within clearly defined constitutional boundaries.
At the same time, the President’s role remains formal, requiring action on the recommendation of the Council of Ministers, which ensures that executive accountability is maintained. The temporary nature of ordinances and the mandatory requirement of parliamentary approval prevent their misuse as a substitute for regular law-making.
In essence, ordinances function as a bridge between urgency and legislative authority, ensuring continuity of governance while keeping ultimate law-making power within Parliament.
