Nepal: Parliament dissolutions and use of ordinance to subvert democratic process of concern to IBAHRI

Thursday 10 June 2021

The International Bar Association’s Human Rights Institute (IBAHRI) is concerned by the dissolution of Nepal’s parliament by President Bidya Devi Bhandari for the second time in under six months and the ordering of phased general elections in November 2021. In addition, the alleged attempts of Prime Minister K P Sharma Oli and the Council of Ministers to interfere in the implementation of the country’s constitutional system, parliamentary democracy and judicial norms are of further concern, as are the human rights violations that Nepal’s citizens may be experiencing as political turmoil takes centre stage and diverts focus away from mitigating the COVId-19 crisis.

IBAHRI Co-chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr jur hc, commented: ‘With the dissolution of Parliament and reported unvetted appointments made to the National Human Rights Commission (NHRC), Election Commission and other constitutional bodies through an ordinance issued by the Prime Minister-led Constitutional Council, it is worrying that fundamental aspects of the rule of law are being bypassed in Nepal. The IBAHRI condemns the dissolution of Parliament and any interference in relation to the separation of powers, both of which are detrimental to any democracy, but particularly to a fledgling democracy. We urge the authorities of Nepal to guarantee genuine democracy, to respect and uphold the nation’s 2015 Constitution as well as citizens’ rights, including their paramount rights to life and health, which requires the COVID-19 pandemic receive the government’s fullest attention’.

Ms Ramberg added: ‘The government needs to recognise the severity of the COVID-19 crisis and the negative impact it has had on citizens in general and on Nepal’s democracy specifically. It will be prudent for the government to provide citizens with tools to enable them to participate fully in the electoral process without having to subject themselves potentially to contracting the virus. The IBAHRI urges the Nepalese government to uphold human rights values and equality as enshrined in Article 2 of the International Covenant on Civil and Political Rights’.

With neither caretaker Prime Minister Oli nor opposition leader Sher Bahadur Deuba able to obtain a majority to form a new government by 21 May 2021, the deadline set by President Bhandari, on 22 May, at the recommendation of Prime Minister Oli, the President dissolved Nepal’s parliament and ordered phased general elections be held on 12 and 19 November 2021.

The opposition say Mr Oli has no legal authority to propose dissolutions having lost a parliamentary vote of confidence earlier in May amid a worsening COVID-19 crisis. This second dissolution of Parliament follows one of 20 December 2020, which sparked mass protests and legal challenges. On that occasion, the Supreme Court ruled the dissolution unconstitutional, and Parliament was reinstated in February 2021. The current dissolution is also expected to face legal challenge.

Prior to the dissolution of Parliament on 20 December last year, action was taken by the Constitutional Council (the Council), headed by the Prime Minister, that undermined the parliamentary role of the House of Representatives. The Council issued an ordinance to amend the 2010 Constitutional Council Act (Functions, Duties and Procedures) that bolstered the influence of the Council, which makes recommendations for key appointments to the judiciary, the Election Commission, NHRC and other constitutional bodies.

Under the Constitutional Council Act, five out of six members must be present to approve a decision. However, the ordinance altered this provision so that the Council can take decisions on a majority basis with only three members present. 

On the day the ordinance was issued, 15 December 2020, three members of the Council met – Prime Minister Oli, Chief Justice Cholendra Shumsher Rana and the Chairman of the National Assembly Ganesh Prasad Timilsina – and made 38 nominations to vacant positions on the constitutional bodies and five seats on the NHRC. Under the 2015 Nepal Constitution, these appointments are supposed to be vetted by the Parliament. However, Parliament was dissolved five days later. Despite the nominations circumventing the usual constitutional process, the appointments stand.

Nepal is suffering from a deadly second wave of the COVID-19 pandemic and is reporting more than 8,000 new infections on average each day. It is an unprecedented crisis. The government has been criticised for its handling of the pandemic. Prime Minister Oli and opposition parties alike have organised several political rallies and meetings after the dissolution of Parliament to gain more support, despite the risk of further spreading COVID-19.

Ms Ramberg said: ‘The IBAHRI draws attention to Article 21 of the Universal Declaration of Human Rights that states everyone has the right to take part in the government of their country, directly or through freely chosen representatives. We urge Nepal’s authorities to restore public trust and to give every consideration to ensuring citizens are able to carry out their democratic options fully, safely and confident in the integrity of both process and outcome.’

ENDS