From The Kathmandu Post (15 March, 2013)
To extricate the polity from the dangerous course just taken and to guarantee a healthy election campaign, Khil Raj Regmi should resign as chief justice
With the four political forces — UCPN (Maoist), NC, UML and the United Democratic Madhesi Front — foisting upon the polity a sitting chief justice as head-of-government, after having made undue compromises on separation of powers, voter registration and army appointments, a fait accompli has been created which demands intense democratic activism to ensure free and fair elections and a return to constitutionalism. We need to pick up the shards of the ‘loktantra’ vase that has been shattered with deliberate forethought by the senior-most political leaders, and try and rebuild the polity brick-by-brick.
The agreement on Wednesday night was to push through the one thing that the Interim Constitution explicitly prohibits, the appointment of sitting Supreme Court judges to any kind of extra-judicial activity. The act was done as if the country did not have the politicians and ‘independent’ personalities to serve in government in a hundred different permutations, and with the opposition surrendering in the face of the UCPM (Maoist)’s deadly obduracy. The very-willing Shriman Khil Raj Regmi was presented as the only option, he who believes (as told to the BBC Nepali Service) that not attending the bench will define ‘separation of powers’ during his tenure as head of government.
The Maoists have always wanted to compromise the judiciary, and there will be jubilation in the ranks for having achieved this primary goal of their ‘people’s war’. India and many others in the international community seemed to want stability above all else, unmindful of Nepal’s fine jurisprudential tradition. Unable to respond to the Maoist and international pressure, the opposition leadership abandoned its high ground of values and principle. They have thus abandoned the right to be called ‘leaders’ by the people.
Sushil Koirala, Jhala Nath Khanal et al beseeched their baffled party cadre to understand their ‘badhyata’ in going for Regmi, never explaining what was the ‘compulsion’ that had them scuttling of their political movement to oust Bhattarai from Singha Durbar, abandoning the foremost tenets of constitutionalism and due process. Their stealthy short-cut, decried by a spectrum from former CA Chair Subhas Nembang to former CJ Anup Raj Sharma, was too high a price to pay for the immediate departure of Bhattarai.
If we do not work fast to save the situation, the flotsam of this debacle will follow us far into the future. When a country with the historicity of Nepal sacrifices constitutionalism, it will end up with a severely weakened economy, development at dead stop, raging crony capitalism, restricted international sphere of action, and rise of a right wing in response to the radical left. Nepal’s social democratic middle is already squeezed, and an unrepresentative state administration will find it hard to manage the socio-cultural tensions that have been released.
Presented with such a dangerous, complex scenario, it is surprising that so many embassies in Kathmandu were actively promoting a plan of action that simultaneously weakens the democratic political parties and the Supreme Court. The politicisation of the position of the chief justice, and his personal huddles with the politicians and some unaccountable characters, ipso facto impacts the courts in 75 districts and hurts rule of law all over. Directly and indirectly, this manhandling of the top of the judicial pyramid will impact everything in our society from foreign investment to violence-against-women. A little perspective would have helped those wanting to be helpful to really help. When a sitting chief justice meets the defendants on a sub judice case as did Regmi vis-a-vis the demand on a stay order on his appointment, one is to prevent murderers and frauds from citing this precedence to demand a sit-down with the judges in the district courts?
Most surprising has been the activism of the southern embassy, enough to lead one to question why a friendly neighbour cannot be left to sort out its own issues and challenges. It is time for someone at the political helm in New Delhi to explain India’s position on Nepal’s democracy, including in relation to the formation of the Maobadi-Madhesbadi coalition, the federalism debate, and now in the compromises on myriad issues on the way to making the CJ-led government. And how does this overdrive in Kathmandu jive with India’s own positioning vis-à-vis Saarc, and with the prospects of a healthy South Asian regionalism which requires mature and self-confident democracies in each member-state? There may be nothing there, and enough of speaking in hushed tones and euphemisms!
If pressure had to be applied on Nepal for the sake of an election exercise leading to stability that the internationals want, as do the people of Nepal, one wonders such pressure was brought to bear on Messrs. Koirala and Khanal rather than on Bhattarai at Singha Durbar. Why could the Madhesbadi leaders not have been encouraged to evacuate from the corrupt, lawless coalition? In the installation of the CJ as head-of-government, one gets a sense of realpolitik run amok. Under no stretch of the imagination can we say that the handful of leaders made to do the bidding on Wednesday represent the people of Nepal as of March 2013.
As the polarisation between the ultra left and the right begins in earnest in Nepal, the social democratic middle will have to be protected. This will be done by those who have stood up against the national-international pressures over the past year, most importantly the office-holders of the Nepal Bar Association, who have shown their mettle in a time of extreme stress.
The same goes for those individual leaders in the Nepali Congress, the UML and the other parties who have stood their ground against the ongoing desecration of due process in this melancholy spring. Likewise, the district-level intelligentsia all over, the rights activists, the bloggers and twitter-wallahs, and the few academics left standing — it is they who will help us get back to the rails of accountable, democratic governance and help define the future of Nepali politics. Not the tired men who held their hands aloft on Wednesday in a bogus, copycat show of camaraderie.
For now, given the fait accompli that the syndicate of four has forced upon the population, the only practical and principled response is to demand that Shriman Regmi resign as chief justice to remain head-of-government. If he were to do this voluntarily, it would raise the value of his election government and help the Supreme Court regain some of its lost lustre.
Even if an agitation does not immediately self-ignite to force Regmi’s resignation from the Supreme Court — he is clearly disinclined — the point-of-view must be continuously maintained so that it can convert to reality. With Regmi’s resignation in the bag, the government and the people could work together in earnest for an election that is ‘free’ and ‘fair’ according to the profoundest meanings of those terms.