MURARI SHARMA/BHAGIRATH BASNET
The proposed appointment of Chief Justice Khil Raj Regmi as prime minister to head the election government has torn us into three conflicting sentiments. First, we are deeply pained that Nepal has discarded the fundamental principles of democracy. Second, despite that pain, we hope that this arrangement will enable Nepal to hold the polls and come out of the dark clouds of uncertainty occasioned by the dissolution of the Constituent Assembly. Third, we cannot escape the riveting suspicion that there could be something quite sinister behind what meets the eyes.
It is unfortunate that major political parties have decided to appoint Regmi as head of the election government, without resigning from his post at the Supreme Court. Flouting the democratic principle of separation of powers, Regmi will embody legislative, executive and judicial powers. He will amend the constitution and laws and implement them. He will also directly and indirectly influence the Court’s decisions in which his government is a party.
Regmi will be a defendant, for instance, in the case filed by Bharat Mani Jangam questioning the constitutionality of his appointment as prime minister. The end-justifies-means crowd may argue that Regmi would not be working as chief justice while heading the government. But justices will think twice before they issue a verdict against Regmi, who will come back as their boss in the next few months. So justice will be compromised.
No sane democratic country allows such a concentration of powers in one individual, even for a short time. It is worth noting that US Chief Justice John Lay had refused to even provide an advisory opinion to President George Washington arguing that the court, respecting the separation of powers, only decides legal cases submitted to it. The same is true in Australia. In Great Britain, the justices who are members of the upper house express their views and preside over various commissions and committees. In Germany, justices might furnish advisory opinions. But none of these countries goes as far as Nepal has chosen now.
In addition, Regmi’s appointment as prime minister is also inconsistent with another democratic principle—due process. The Interim Constitution has no provision for the chief justice’s appointment as prime minister. The court Regmi heads had used the Constitution to dissolve the Constituent Assembly. If the chief justice himself tramples due process, what can we expect from others? It will, therefore, be morally wrong for Regmi to accept this appointment without a constitutional basis, but ambition often gets the better of moral imperative of human beings.
That said, in a fait accompli we take solace that the acrimonious see-saw that has persisted for far too long between the Maoist-Madheshi coalition and opposition parties to lead the election government has hopefully ended. It will be great if Regmi could hold elections to the Constituent Assembly-Legislature cum Parliament by mid-June 2013, as envisaged. But it looks like a mission impossible in a country riddled with chaos, insecurity, economic disaster and a bevy of other problems.
Even in the best of circumstances, much ground will have to be covered between the appointment of Regmi as prime minister and actual polls. The devil lies in the details. Technically, it will be nearly impossible to organize the vote within four months. The Interim Constitution and relevant laws must be amended. Election commissioners will have to be appointed. Madheshi parties’ demand that citizenship certificates be issued to those who do not have them yet will have to be accommodated. Election districts must be redrawn based on the 2011 census and election symbols must be awarded. The voters’ list will have to be updated.
Thousands of documents will have to be printed, transported, and distributed across the country. Security arrangements will have to be made in a chronically chaotic country marred by widespread insecurity.
At every step of the way, Regmi will face hurdles. Major parties will put pressure on him to appoint their supporters as ministers. They will remote-control him through the high-level political committee. They will haggle forever on the constitutional and legal amendments, election symbols, election districts, and so on. Some of these cases could go to court for a final decision. The parties will not give up or compromise their pet positions simply because the chief justice heads the government. Free of any accountability, they will squabble forever on all political and technical issues.
In the midst of perennial discord, the parties will send conflicting signals to Regmi. The question is when conflicting messages come, who will Regmi heed? History might offer a clue. After Dilip Paudel retired as chief justice in 2007, then-Maoist Prime Minister Pushpa Kamal Dahal had floated Khil Raj Regmi’s name to succeed Paudel, bypassing four senior judges—Kedar Prasad Giri, Min Bahadur Rayamajhi, Anup Raj Sharma and Ram Prasad Shrestha. In the last few days, the Maoists flatly rejected the proposal of the opposition parties to appoint a former chief justice as head of the election government.
The Maoists have repeatedly said that their grand design to capture power by all means has not changed. Maoist supremo Dahal has complained that other parties have fenced his party in. His deputy, Baburam Bhattarai, has called civilian bureaucracy, army, and courts old institutions that have blocked progress during his stint as prime minister. The Maoists want to break these institutions to achieve their ultimate objective. They tried to unravel the army in 2009 by removing Army Chief Rukmangad Katuwal and replacing him with Kul Bahadur Khadka, superseding Chhatra Man Gurung. They might have endeavored to break the Supreme Court this time by having Regmi, their favored candidate for chief justice in 2007, as prime minister.
Amazingly, political leaders never tried to persuade the President to lead the election government, even though he was the most natural candidate and responsible official. This is something to consider in the future. For now, we hope Regmi has evolved since 2008 and if given the opportunity, will work independently as prime minister, without the burden of gratitude to Dahal, and conduct free and fair elections.
We need free, fair and timely elections to end the ongoing instability and ensure freedom, liberty, growth and prosperity. We want our children educated well, our sisters and mothers empowered, good health care for all, dignity as citizens, and corruption-free government. These objectives can be achieved only by creating an environment in which every Nepali citizen feels free and secure to unleash their energy and creative potentials, not by relying on foreigners and blaming them for our misery. Eleanor Roosevelt has said, “No one can make you feel inferior without your permission. Do not give them permission.”
In democracies, both means and end have to be right. Only in dictatorship, end justifies means. So we have principled disagreement with the choice of leadership for the election government. However, in a political culture where politicians routinely flout due process, we take the emerging arrangements as a fait accompli for once and hope that we will be able to build a better democratic future on this imperfect foundation while avoiding a descent to dictatorship
|Published in Republica, 24 February 2013.
Published on 2013-02-24 01:15:16