By Achyut Wagle
If no extremely dramatic events unfold in Nepali politics overnight, the incumbent Chief Justice of the Supreme Court of Nepal, Khil Raj Regmi, may have sworn in by the time this writing reaches to our readers. He, or whoever for that matter, will be the tenth chief executive of the nation in as many years, which exposes the gravity of the political instability and difficult transition the country is reeling under.
Prey to Politics
Whether or not Regmi became prime minister is by now an issue of secondary importance. The prime concern here is: the judiciary also couldn’t resist the temptation of political indulgence at the cost of its so far largely maintained independence and respect to professionalism. In this sense, the judiciary, that was somehow saving Nepal from falling into the abyss of acute form of anarchy and was the last testimony to the remnant feature of rule of law, has been the last pillar to fall prey to political machinations. Otherwise, Nepal is by now already faced with the consequences of the institutional degeneration, almost in every spectrum of life. Every professional and state institution is highly politicized. The security apparatus like army, police, intelligence, the civil service and diplomacy, the academia and civil society and to a large extent even the media now wear the cloak of some hue of politics. Lately, all government set-ups have been forced by design and default to act as the extended wings of the UCPN (Maoist). Democratic forces of the country remain defensive and indifferent to growing aggressiveness intrusion of the Party invariably into all state organs of the country.
The Question of Constitutionality
The prevalent Interim Constitution of the Country doesn’t provide for an incumbent chief justice to become the chief executive of the country as well. The Supreme Court still headed by Regmi has the ultimate authority to interpret the constitution. But, at this juncture, any interpretation of the provision that is completely absent in the constitution would tantamount to nothing but a blatant conflict of interest, since such an interpretation, technically presided by Regmi himself, is only likely to justify his decision to take-up the top job. The press statement issued by the Supreme Court in the last week of February, apparently at Regmi’s will and design, already demonstrated the overall tilt of what it could be possibly like. The entire objective of the statement was that, he is only willing to go on ‘deputation of duty’ from chief justice to the chief executive, without resigning from his present post. This is more of an ominous than welcome sign, both in view of judicial independence and concept of balance of power in democracy.
Controversial Beginning
Let’s suppose Justice Regmi is assigned to head the election government. He would be taking up the job not as a much-touted-about ‘consensus figure’ but amidst a sharp division regarding his choice for the job. Not only the opposition parties, but all four largest parties -- ruling UCPN (Maoist), Nepali Congress, CPN-UML and Madheshi Morcha -- are vertically split into two factions each, on Regmi’s pick. And, some of the arguments of the dissenting factions in each party are worth pondering. Firstly, the move would directly prove that political parties are grossly incompetent and not trustworthy to head an election government. Second, they are oblivious of the very concept of balance of power among the major three organs -- executive, legislative and judicial -- of the state. And thirdly, what miracle could Regmi alone demonstrate as the country now languishes in a serious nature of constitutional vacuum. The institutions like Nepal Bar Association have voiced serious concern over the Chief Justice’s lust for power at the cost of judicial independence. There are apprehensions that the UCPN (Maoist) has plans to rig the next polls by misusing the state-power yet would validate results by making the chief justice the head of the election government. Regmi’s appointment automatically blocks the other parties to seek judicial remedy in case of electoral malpractices. These points of view definitely hold waters and cannot be glossed over instantaneously.
Crisis of Management
Regmi’s appointment requires a series of important makeovers under the guise of the constitutional provision of ‘Power to Remove Difficulties’ by the President of Nepal. The constitution has not envisioned an incumbent justice becoming the prime minster (in whatever name, the chief executive of the country). This would require a special decree form the President, citing the political consensus among the major parties, which again looks a pure farce with so much discontent fumed around. Even if the appointment hurdle is cleared, there are several other constitutional issues that warrant a speedy sorting out. The positions in the Election Commission, including that of the chief commissioner, are vacant. Does Regmi want to play this role as well, as he is officially likely to be titled as the chief of Election Council? What happens to the positions of the chief justice itself whereas the constitutional spirit is that both the head of the government and the judiciary represent separate, independent capacities in several crucial institutions like the Constitutional Council, that make appointment of the heads and office-bearers of several constitutional bodies including the Election Commission. Incidentally, almost all constitutional bodies like Commission for the Investigation of Abuse of Authority, Auditor General’s Office and Election Commission are without the chiefs or office-bearers, for years in some cases. Even in the Supreme Court, three-fourth of positions of justices remains vacant. To fill these all would require a separate arrangement as there is no possibility of fulfilling the constitutional provisions through parliamentary hearing in absence of the legislature.
Competence and Delivery
Whether Regmi would be able to hold fresh elections by November this year is the cardinal of all questions here. This requires a lot of political work that begins from the point where he starts to choose the kind of people to fill in the positions in his government. The impartiality issue of himself and his picks will be crucial. And, worst of all he will be functioning under a situation where all major constitutional positions will have already violated to pave the way for his appointment and only resort to move ahead will be the kind of political support he gets as he moves ahead. This implies that there will be forces on the ground who would be constantly challenging his actions. As the nation has not decided on the number of constituencies for new elections, their modalities and, whether it would be an election for both Constituent Assembly and Legislature or only for the former, to propose a formula agreeable to all is impossible and purely a political rather than a bureaucratic exercise. Regmi has yet to try his art in this trade.
It is too early to say anything whether he is competent enough and would be successful to deliver what he is expected of. But his track record is not very encouraging. The latest allegation is that he paralyzed the justice delivery system by not taking any initiative to appoint the judges in the Supreme Court in time. It was the Court verdict that had barred the extension of the then Constituent Assembly tenure beyond May 27 last year. Despite the fact that he knew the parliamentary hearing of new judges would be impossible beyond that date, he failed to initiate the action of extending the term of existing justices or to appoint new ones when there was adequate time left. At present, the result is that the Supreme Court is left with only six justices whereas in high times it used to have as many as two dozen justices. This indeed have made justice delivery difficult, and, at the same time put Regmi’s credibility under huge interrogation mark.
The Last Optimism
Whatever the cost or difficulty in the process involved for his appointment, the only hope is that Regmi as the accepted figure by four or five largest political parties could hold elections and those polls would be free and fair at an acceptable degree. Every party though has viewed Regmi’s installation as their convenience for entirely different reasons than this, which again could complicate the situation in future. For Maoists, it was a great achievement to be able to stop Nepali Congress from heading an election government and it hopes that Regmi would duly oblige the party for surprisingly picking him to head the next government. Congress and UML are contended only at the ouster of Baburam Bhattarai from the prime ministerial position, who otherwise seemed unrelenting to relinquish the position. Other forces, including the international community wanted to trust on Regmi’s legal credentials and his largely maintained non-corrupt image during a long legal career.
But, interestingly again, even if new polls could be held within a year or so and a new Assembly is instituted, Nepal’s political challenges will still be where they were immediately after April 2008 elections. Therefore, there is no point being over ambitious at this very moment about anyone heading another government or holding polls. Unless, political rationality, read it metamorphosis of parties from authoritarian to democratic mindset, prevails among the major political players the country, Nepal’s political crisis will only deepen regardless of any drama we orchestrate, be that drama of government headed by the chief justice.
