Two major developments have taken place in Nepal, side by side, recently. Pushpa Kamal Dahal — comrade Prachanda in his previous avatar as the leader of a decade-long insurgency — took over as the new prime minister with the backing of the largest party in parliament, the Nepali Congress. At the same time, the supreme court was packed with judges — the parliamentary hearing committee approved 11 appointments — most of them are NGO activists and cadres of the two major parties, Nepali Congress and K.P. Oli’s Communist Party of Nepal-Unified Marxist Leninist, which has just quit the government. The deep nexus between donor funded NGOs, civil society movements, and their affiliation with political parties and the judiciary, is not ideal for the consolidation of democracy and the image of the judiciary. Right after a prolonged political transition, the country has launched yet another dangerous political experiment, Interestingly, the media has also assumed an activist role, triggering debate on whether such a role will promote or undermine their professional ethics. Last week, one of the newly appointed judges confessed she had not yet given up her “membership” in the Convention Against Torture (CAT), a UN body, and she was still considering whether to quit as “it was not an office of profit”. Whether judges can put on other hats while they serve in the judiciary is not an issue anymore. Over a period of time, especially during the past 10 years, international donors have not only set up their offices in various ministries of the government, influencing legislation, they have also funded the supreme court for its “modernisation and reforms”. What the supreme court has not debated is whether such support has “any strings attached”.
International forces have often charted out the political course for Nepal, sometimes at great cost. For some time now, they have taken more of an activist posture on issues like federalism, secularism and republicanism, but have rarely stood in favour of the people’s right to settle these contentious issues, by referendum if necessary. For instance, the costly experiment to have a sitting chief justice head an ostensibly elected government in collaboration with four major political parties that lasted for 14 months from March 2013 onwards, was something suggested and promptly encouraged and recognised by the international community. Now, the politician-activist-donors nexus has come to dominate the appointment of judges.
Nepal’s constitution was largely the outcome of an exercise by the top leaders of half a dozen parties who did not even allow the constituent assembly to debate issues fully. The members were informally “whipped” and for the leaders, the promulgation of the statute on the deadline, that had been deferred about half a dozen times since the first one expired in May 2010, became prestige issue. In fact, the donor-funded civil society groups, the media and NGOs supported an inadequate constitution that can not be executed or implemented. For instance, it declares Nepal a federal country but has not demarcated or named any of the units in the federal structure. K.P. Oli’s government that came to power in October had promised they will implement the constitution on a priority basis but everyone knows the constitution in the current form cannot be implemented. At the same time, donor-funded civil society groups are still seen more as a vested interest with an overriding impact on politics.
This nexus, in such a brazen and mega scale, began firming up in early 2006 when they were partners in the movement for restoration of democracy which meant getting the then king Gyanendra to hand power back to political leaders. They succeeded, and the collaboration and partnership have only deepened further. Almost all the major political parties, in principle, insist that the independence of judiciary is “not negotiable”.
The Nepali Congress, the largest party in parliament, even went so far as to say “nominees for judges’ post should not have any political affiliation.” But the party did not raise the issue when the all-party parliamentary committee confirmed the list of nominees from major parties. The Maoist party, which had no representation in the list of 11 judges earlier, will have its nominee accommodated in the apex court when the next vacancy arises in a few months.
A weak state, with its authority eroded, and a judiciary with its impartiality, fairness and neutrality under a cloud of suspicion is perhaps the biggest source of despair for the average Nepali.