Court & the virus

From The Kathmandu Post (15 February, 2013)

The suggestion of Chief Justice Khil Raj Regmi serving as head of government, pushed by the UCPN-Maoists and even supported by some embassies and civil society leaders, is based on poor appreciation of Nepal’s democratic experience and achievements in jurisprudence.

More than anyone else, it is the people of Nepal who are exasperated with the continued political deadlock that is jeopardising elections in mid-May, and who seek political normalisation six long years after the ‘peoples’ war’ ended. But this does not mean opening up the polity to a foolish departure that is designed to destroy separation of powers and compromise the only (and most important) institution of state that remains standing amidst Maoist-led demolitions.

Queen’s English

Only those who do not appreciate Nepalis as a people who have fought continuously for democracy for over eight decades—including our stalwarts playing a role in Indian Independence—would believe that this is a country without democratic values, legacy and institutions.

Among some in the international community, there is inadequate appreciation of our evolved democracy for the simple reason that the polity functions in the vernacular rather than in the Queen’s English. The energy and tenacity of the democratic spirit is poorly reflected outside the vernacular. The resulting lack of appreciation for Nepal’s experience makes it easy for some, including the neighbours to the north and south, to be less than respectful of the polity’s commitment to rule of law and due process.

The fact is that the judiciary has shown its independence since the days of the first chief justice Hari Kumar Pradhan, a career judge from the Indian court system who was brought by BP Koirala from Darjeeling. The Supreme Court even stood its ground, more or less, during the 30-year Panchayat era. Today, the Sarboccha Adalat is the single remaining bulwark against the forces bent on creating a wasteland without human rights and accountability.

The human rights jurisprudence of Nepal is evident in recent exemplary judgements by Justice Kalyan Shrestha and by Justice Ram Kumar Prasad Shah—and the quality of the debates before the bench by our constitutional lawyers—is little appreciated beyond the borders because all of it is conducted in Nepali. The justices have not been cowed even by the assassination of one of their own, Justice Rana Bahadur Bam, in end-May 2012

Blot on democracy

The suggestion of some of the players that Nepal’s polity must compromise on the democratic process in order to get rid of the usurper Prime Minister Baburam Bhattarai is needlessly opportunistic. Certainly, Bhattarai is a blot on the face of democracy, for his promotion of multi-million dollar corruption, the destruction of state institutions (from the Anti-Corruption Commission to the Election Commission), and his proactive endorsement of impunity—general amnesty for perpatrators, cancellation of a thousand-plus cases of excess, and a truth and reconciliation ordinance that is a spear into the heart of the victims.

But Bhattarai’s misdemeanors do not mean that we throw caution to the wind in seeking his ouster from Singha Durbar. The Maobaadi-Madhesbadi coalition must be forced out, but this must happen without jumping from the frying pan into the fire, viz the entrapment and destruction of the judiciary.

The path out of the present deadlock is so simple that it beggars an answer from the national and international individuals and entities (including the waffling ‘seersastha’ of the Nepali Congress and UML) as to why they do not pursue this approach. The very forces so keen on saving the face and career of Bhattarai as ‘their man’ would do much better to inveigh upon him and his coalition partners to leave government and make place for a national consensus government (including these very parties, incidentally) to run the elections.

Why is it necessary to put the Supreme Court on the chopping block to get us to the polls? Instead of a national election government made up of all the major players from the departed Constituent Assembly, the transparently lame excuse is made that “Baburam will not agree” without the Chief Justice being made head of government. Who is it that thought up this destructive plan of action, and incidentally who exactly does the gentleman Shri Amresh Kumar Singh represent, who has been promoting it for some weeks now?

As opposed to the shadowy and unaccountable characters in and outside of the political parties, and the political chieftains scared of losing their ‘most-favoured’ status, it is the mid-level leadership of the UML and Congress that have responded healthily against the drastic slide. Meanwhile, the newly-elected Nepal Bar Association led by barrister Hari Krishna Karki, as the representative body of Nepal’s lawyers, has come out strongly against the attempt to compromise the judiciary, even challenging Chief Justice Regmi for his silence and apparent complicity.

Apolitical politics

“What is good for Bhutan should be good enough for Nepal,” goes one refrain, uncaring of the fact that there is rather a distance between the evolving monarchical democracy of Druk Yul and the rambunctious Republic of Nepal. And why should the Bhutanese constitution be exemplary? Neither does the example of Bangladesh serve a purpose, beyond even the fact that Dhaka has already changed course, realising the pitfalls of ‘apolitical politics’.

Most importantly, Nepal is a mature polity, confronted with elections to a CA rather than a parliament, amidst an incomplete peace process with the largest party bent on destroying due process. Our Supreme Court here is fully engaged with a myriad of cases that puts it at loggerhead with the existing regime and the Maoists, and the latter have every reason to threaten, cajole and compromise the judiciary.

It has long been clear that Bhattarai would like to compromise the judiciary in relation to conflict-era atrocities (by both sides), atrocities that must be pushed through the court process and not lost in the sands of ‘transitional injustice’. It does not require a doctorate-holder to see why Bhattarai and his chairman would want to waylay the judiciary—the ongoing attempt to scuttle the case of the late Dekendra Raj Thapa being a case in point.

One would wish that all of our present problems are the makings of the Nepali polity, and the same goes for the search for solutions. Indeed, a sovereign people should and must be allowed to make its own mistakes and learn from them. The world outside may be satisfied with mere stability in Nepal, but the citizenry wants stability in democracy, peace and pluralism. It makes no sense to promote a virus-laden procedure that will only make Nepal more undemocratic, poor and lawless.

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