Going by the raucous debate over the appointment of the sitting chief justice Khil Raj Regmi as the head of the interim electoral government, one is led to believe that the issue is a matter of life and death for the country. On the one hand, UCPN (Maoist) and its Madhesi coalition partners have made it crystal clear that the proposal of CJ as government head is their last offer for a breakthrough. In their version, if the opposition parties don’t agree on it, it will be a final, irrefutable proof that NC and UML were never in favor of election. In this case, the opposition parties will have to bear complete responsibility for what goes wrong thereafter.
On the other hand, a big section of the opposition parties and nearly the whole of the legal fraternity have opposed the proposal, saying that it could potentially dismantle the whole democratic system. On the weight of evidence, the critics’ case is a little stronger. Why did the Maoists propose a sitting Chief Justice, while they could have picked from among hundreds of other both political and non-political personalities? The most obvious reason appears to be that the Maoists wanted to dismantle the last remaining obstacle, the judiciary, to their total control of state power. Past Maoist documents make it amply clear that they are not too keen on judicial independence.
NOT THE ONLY MESSENGER IN TOWN FILE PHOTO/REPUBLICA
The second argument going for the critics is that appointing a sitting chief justice would do great violence to the interim constitution. Any possible way out has to be explored by doing the least damage to the interim constitution. If the spirit of the interim constitution is to be violated whenever it is expedient to do so, there is no point in having any constitution at all. The third argument is that going against the hallowed democratic principle of separation of powers could set a dangerous precedent. Besides, once power goes out of the hands of the political parties, what is the guarantee that it will come back to them?
It is true that there should never have been a situation where the name of the sitting CJ had to be proposed as the executive head. Ideally, the political parties should have settled on a political candidate, even if there were differences among them. But after months of endless bickering over the future PM, it had become clear that there could be no settlement on a political candidate and other alternatives needed to be explored. But when the Maoists, instead of exploring the option of a neutral candidate, threw the trump card of the incumbent CJ, the opposition, the civil society and the whole legal fraternity was caught on the wrong foot.
Of course, many believe it was not a Maoist proposal at all. That it came from across the border. Not an unlikely prospect. India will do everything in its ambit to safeguard its national interests. It does not matter if a course of action will indeed help its interests. What does is that India believes it will. In fact, given the delicate security situation in the region, it would have been even more surprising had India held back indefinitely, hoping against hope that the state of prolonged political and constitutional vacuum in Nepal would come to an end. That said, the sight of the Indian ambassador directly intervening a meeting between top political leaders being held to finalize the PM candidate has had an extremely damaging impact on the psyche of Nepali people as well as on India’s image in Nepal. Subtlety is clearly not one of the strong attributes of the growing regional powerhouse.
Nonetheless, India’s interference (whether unilateral or invited) should not mask the fact that had the political parties been able to develop a little more mutual trust, a solution could have been found long time ago, without any need for external benevolence.
Nepalis seem to be getting desperate. All kinds of hard questions are being asked: If all developments are being controlled from outside, does Nepal remain a sovereign country? With the dismantling of the time-honored democratic principle of separation of powers, is Nepal still a functioning democracy? And what happens if the CJ-led government is unable to conduct polls? Won’t Nepal then be a de facto failed state?
Anything is possible. But six months down the line, whether or not there is CA polls, people are unlikely to be celebrating in wild joy, or to have descended into total despondence. Few will be surprised if there are no polls by November, given the widespread perception that no political party wants election in the current situation. In that case, all fears of the irreversible setback to democracy set in motion by the CJ’s appointment as PM will stand vindicated.
Given the delicate security situation in the region, it would have been more surprising had India held back, hoping the crisis to end on its own.
But what if the Chief Justice-led government is actually able to hold free and fair polls for a new Constituent Assembly? The political parties will be applauded for their astute thinking; the proposal for a government under the sitting Chief Justice billed a stroke of genius. The question of separation of powers will be pushed to the backburners as the CJ, the new hero in town, resumes his normal duty with a halo around his head. He might even be hailed by the legal community: at a time the country seemed to be going nowhere, one of their own managed to bail it out, just in time. The brouhaha over foreign meddling will die down with the responsibly of charting a new course for Nepal falling back on people’s representatives.
The truth is, no one really knows what turn Nepali politics will take in a week, leave alone three or six months down the line. In fact, the supposedly informed political pundits might be the least reliable ‘visionaries’ of Nepali politics. Phlip Tetlock, the author of Expert Political Judgment: How Good Is It? How Can We Know?, found in his 20-year-long study that ‘experts’ on politics (famous columnists, feted political scientists) were little better than non-experts (randomly picked persons from the street) at predicting political outcomes. All that they were doing in their ‘expert commentary’, Tetlock discovered, was confirming their own biases.
In the final analysis, no outcome (election or no election) is likely to make a dramatic impact on Nepali politics and the lives of common Nepalis. In fact, successful holding of CA polls could spark another round of vicious debate on contentious issues, which could potentially tear the country’s social fabric apart. But timely CA polls would still be a more desirable outcome, even if its outcome could be painful. The pain could just be the birth pangs of New Nepal.
biswasbaral@gmail.com
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