Though the political parties were initailly averse to the Maoist proposal, fast-unfolding political developments indicate that they are gradually converging around it. [break]
CPN-UML has been stating that a government formed under the leadership of non-political figure will not be acceptable while the Nepali Congress (NC) has decided to go along even with a government led by a sitting justice if such a government creates the ground for conducting fresh constituent assembly (CA) polls by May and does not undermine the basic democratic principle of separation of powers.
However, a majority of NC leaders are still against a government being led by a sitting chief justice.
At a time when various statements are emanating from all walks of life, Chief Justice Khil Raj Regmi himself has not broken his silence regarding the issue.
Supreme Court of Nepal.
Nepal Bar Association (NBA), the umbrella organization of lawyers across the country, has, for its part, warned the political parties that it will not be bound to accept a government formed under the leadership of a sitting chief justice even if the latter first resigns from the apex court before taking up the prime ministerial post.
A meeting of the NBA held on Wednesday urged the political parties to answer how a single person can under existing law lead the legislature, the executive and the judiciary. NBA said that it will remain on the alert against any move that runs counter to the constitution.
Constitutional experts and lawyers, at a meeting with President Ram Baran Yadav, urged him not to endorse the proposal to form a government headed by a sitting chief justice.
Apart from non-Maoist lawyers and some independent ones, even lawyers close to the UCPN(Maoist) have ruled out the possibility under the Interim Constitution of a government led by a sitting or former Supreme Court justice.
Ram Narayan Bidari, an advocate affiliated with the UCPN(Maoist), maintains that a sitting or former justice can lead the government on the basis of political understanding. He, however, argues that even such an arrangement will violate existing law.
At a meeting with Prime Minister Baburam Bhattarai on Wednesday, around a dozen lawyers including Attorney General Mukti Pradhan, who is chief legal advisor to Bhattarai, suggested to the prime minister that a sitting chief justice can head a mechanism that is meant just for conducting polls.
Constitutional law expert Dr Bhimarjun Acharya said that formation of a government under the leadership of a sitting justice will cause the collapse the party system and the country´s judiciary will be in shambles.
He further argued that in no established democracy has a sitting or retired chief justice held the post of chief executive.
Senior Advocate Harihar Dahal maintained that if a government is formed under the leadership of a sitting chief justice there will be no checks and balance among the three branches of the state: legislature, executive and judiciary.
“How can a judicial review be conducted when a single person heads both the executive and judiciary, should a decision of the government be challenged at the Supreme Court?” Dahal asked.
He said that the proposal to form such a government is not only against the Interim Constitution but also against the principle of separation of powers.
Dr Acharya said that if a government is formed under the leadership of a sitting chief justice, it will invite further crisis as the Judicial Council, the constitutional body responsible for recommending the appointment of judges, will not be able to sit. The chief justice is also chairman of the Judicial Council.
CPN-UML central committee member and advocate Agni Kharel stated that political parties cannot go against the existing constitution in the name of consensus.
“Those (politicians) who advocate formation of a government under the leadership of a non-political figure should quit politics,” he maintained, adding, “How can one justify the relevance of another when he cannot justify his own relevence?”
Kharel accused the UCPN(Maoist) of floating such a proposal with the intention of interfering with the judiciary, which has remained the sole check on the activities of the present government in absence of parliament.
Asked about his view on the proposal, political analyst CK Lal said, “It is an admission of the failure of the political class as the parties have already failed with the dissolution of the Constituent Assembly without promulgating a new statute.”
He stated that there will be more risks than possible advantages in the formation of a government led by a sitting chief justice. “If such a government also cannot conduct fresh polls, the country will become a failed state.
However, Lal also argued that the best constitutional way to resolve the current political crisis will be to allow the present caretaker government to conduct fresh elections and create an environment in that regard. “Apart from this, whatever is to be done will be unconstitutional,” he maintained.
Though other parties are coming up with their respective views, the ruling United Democratic Madhesi Front (UDMF) is yet to make public its official view on the Maoist proposal.
Related story
Hollywood Celebrity Proposal Stories
