Overwhelming force

From The Kathmandu Post (01 March, 2013)

Overwhelming force’ is a military doctrine, also utilised during the 2003 US invasion of Iraq, where shock- and-awe is used to paralyse the enemy, and—to quote one paper on the subject—“overload an adversary’s perceptions and understanding of events”. This is what the UCPN-Maoist is doing with the polity and its adversaries, and what helps the attempt is the fact that so many national and international players are acting indulgent.

The application of this doctrine is evident in how the national democratic stalwarts have fallen like dominoes in joining the campaign to convert the chief justice into an executive head, and thus to compromise the judiciary as the last bastion due process in Nepal. The president of the republic himself is compromised by his activism in its favour.

As we speak, the polity is sharply divided into two streams, one made up of Shital Niwas, Baluwatar/Singha Durbar, the entire UCPN-Maoist hierarchy, the topmost tiers of the UML and Congress, and quite a few members of the intelligentsia. Some have succumbed to the blunderbuss because of subjective understanding of jurisprudence and its role in societal advance, others have succumbed to political blackmail, and quite a few have joined because they believe there is no other way to be rid of Baburam Bhattarai as prime minister.

Standing in opposition to this plan-of-action are diverse players, including some elements of the radical left and even some from the ultranationalist fringe. However, the democratic challenge against this attack on the courts comes from the newly-elected team at the Nepal Bar Association, and a majority of its former office-bearers as well as the retired justices. The sitting members of the bench are also said to be perturbed. For their part, lay citizens seem to favour a process-led democracy: a public opinion poll conducted in 12 towns and cities last week showed 54 percent opposed to making a government outside of the political parties, and 26 percent in favour.


CJ as PM

There is enough deniability all around, so let us just say that the Indian state may or may not have been engaged in supporting this game of CJ as PM, and there may or may not have been tacit support from the Chinese. Certainly, the neighbours have an interest in stability in Nepal, and our endless transition would affect their perceived national security interests. But can such interests be served by converting Nepal into a country where due process is compromised? This would once again hinder our democratic evolution and lead to deeper divisions in society, enough to guarantee deeper instability in the long term.

It is the people of Nepal who want stability more than anyone else. Not through a return to a Panchayat-like era of unaccountable government, but a stability in democracy and peace. For this, the Supreme Court needs to be kept sacrosanct rather than be used for the purpose of implementing an uncertain election in the foggy future. Indeed, why this drastic departure when the national and international players could have come together to encourage the Madhesbadi parties to leave the coalition government, so that a consensus all-party government could be formed? If ‘overwhelming’ inducements had to be utilised, howsoever unpalatable, why not direct them to encourage Bhattarai to leave government? And, incidentally, does anyone believe that the UCPN-Maoist wants elections at this time, and hence is this risk of compromising the judiciary worth taking?


Dhungel and Sapkota

Among the many things the UCPN-Maoist would like to do, the foremost is to undermine the judiciary. The Supreme Court has been a thorn on its side for its watchdogging of accountability, including for conflict era atrocities—think Bal Krishna Dhungel and Agni Sapkota. At last count there were 72 stay orders issued against Bhattarai as prime minister, including the one which kept him from destroying the case against the murderers of journalist Dekendra Raj Thapa in Dailekh. No wonder the party wants to pull the rug from under the honourable justices.

Among the NC-UML top brass and a good section of intelligentsia, the argument is that any step is kosher if it gets Bhattarai out of power. To them, he is embroiled in massive corruption, blood-letting of the exchequer, compromising all state institutions including, most recently, the Army, which has become a ‘foreign stooge’, and intends to convert Nepal into a one-party state. Nothing the CJ Regmi could do as PM would be worse than this, goes the argument.

But the end cannot justify the means, especially because it is not at all clear that the means (CJ as PM) will get us to the end (elections), and when there is ample evidence that the Maoist gameplan is simply to get the constitution amended to their convenience through the bhadha fukau (‘removal of difficulties’) process. Also, you have to wonder why Bhattarai insists that it is the incumbent chief justice he wants as prime minister, not Khil Raj Regmi the person.

In essence, the argument is to destroy rule of law in order to save rule of law. The judiciary sits at the top of the brick-by-brick construction of our constitutionalism over decades, and why should anyone agree to a dynamite blast at the base of the edifice. Once the judiciary is down, it will be a field day for the opportunists who want anarchy.

Nepali society sits on a razor’s edge today, with so many imponderables up ahead. Once you compromise due process and rule of law, there will be no more controls on state or society. Numerous polarisations would bubble to the surface, leading to a spectrum and spiral of abuse, from social strife to crony capitalism, further economic downturn and endless recriminations in all quarters. Amidst such a scenario, right-wing religious ultra-nationalism would gain traction, and the social-democratic middle will be squeezed to a sliver. All of this may not come to pass, but are we alert to the dangers of playing with the Supreme Court as if it were a social engineering toy?

Amidst the great silencing, even at the late hour, let us look at some alternatives to the sitting CJ as PM: Justice Regmi can become PM after resigning as CJ; alternatively, we can have a national consensus government made up of the topmost leaders of all the major parties. The easiest would be to appeal to the democratic conscience of the Madhesbadi leadership and ask them to abandon the Bhattarai coalition. That would give us a smooth transition and leave our judiciary intact.

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