Nepal’s “transitional parliament” ceased to exist on Friday, a day before the nomination process for elections to the provincial and federal parliament, the first time under the two-year old new constitution, began. But the demise of parliament or the highest representative body has come at a time when the extra-constitutional conduct of the political leadership and a discredited justice system together pose a threat to the meaning and relevance of constitutionalism.
What would guide the activities of the state, especially when the election process has begun? How will the aggrieved sides seek remedy to alleged lapses? The supreme court is currently looking into a case challenging the appointment of all the 80 judges to seven “high courts”. What exposes the darker side of the case are the submissions of two members of the judicial council that (at the time of appointment) they were not taken into confidence when names of judges were recommended en masse. As per the constitution, the five-member judicial council headed by the chief justice prepares the final list and “recommends” their appointment. The submission of the two JC members — Baidyanath Upadhyay and Ram Prasad Siaula — that they were kept in the dark on the list only gives credence to the theory that the then Chief Justice Sushila Karki succumbed to “political dictat” while appointing the judges. Another case challenging the appointment of 11 out of 22 SC judges is also under the consideration of the apex court on the ground that the JC did not have its full strength of five members — two seats were vacant — while names were recommended.
The judiciary, especially the supreme court, may have a crucial role to play as Nepal’s constitutional system appears on the verge of collapse. There is speculation about how the top functionaries would behave during the most crucial phase of the decade-long transition when not just political forces, but also the bureaucracy, judiciary, civil society and media are polarised and guided more by partisan interests then constitutional norms.
Meanwhile, the15-month long marriage of convenience between the Communist Party of Nepal (Maoist Centre) and the Nepali Congress has ended in a divorce following the formation of a new “Left alliance” under the leadership of the CPN (Unified Marxist Leninist). The tricky problem that Prime Minister Sher Bahadur Deuba, who is also the chairman of Nepali Congress, faces now is whether he has the right to remove Maoist ministers from his coalition government. Maoist chief Pushpa Kamal Dahal and his new ally and UML chief K.P. Oli have warned Deuba that he does not have the right to fire ministers — their parties, however, can withdraw them. Deuba, who is under tremendous pressure from his party’s central committee to sack the Maoist ministers following their defection to the rival alliance, however, has not been able to muster enough courage as he fears that President Bidhya Devi Bhandari and Chief Election Commissioner Ayodhi Prasad Yadav may annul the decision. (That is the reason he has not been able to remove them even after he inducted seven ministers, four of them cabinet rank, from new ally, the Rastriya Prajatantra Party five hours prior to the demise of the House.) Nepal’s top constitutional offices have on several critical occasions acted more as representatives of the political parties that recommended them to the post.
A tussle between the president and the prime minister (on the eve of elections) may have dangerous consequences, and create a difficult situation for state agencies including the Nepal Army. Both the president and the CEC need not fear impeachment in the absence of a parliament. On the other hand, the judiciary and the supreme court, badly discredited and embroiled in partisan politics, may not be able to settle any dispute among the top functionaries should the current uncertainty unfold that way.
Nepal’s civil administration openly defied the government’s move to curtail their unions, affiliated to various parties, when the government tried to pass a legislation to insulate the “bureaucracy” from partisan politics. The response of the unions was “we 60,000 members will together show the government its place”, and the government retracted. The newly formed left alliance has substantial influence over the bureaucracy.
The security agencies including the Nepal Army will face an even difficult predicament as elections near and law and order becomes a major concern. “I see a distinct possibility about the president and the prime minister differing on the deployment of the army as they will be guided by their partisan interests and preferred electoral outcomes,” a senior military officer said. The main political parties, especially the Maoists and the CPN-UML, injected partisan politics in the bureaucracy, judiciary and constitutional bodies after the 2006 political upheaval. It has turned out to be the biggest threat to democracy, a system that demands fair, just and impartial treatment of state organs towards all sections of electorate and people.
For many people, “state capture” by the Maoists in alignment with the UML is now a prospect rather than just a thought. That mass fear is now shared by the Nepali Congress, a party that had democratic credentials but is now as guilty as other parties of politicising all the state organs. It may ultimately lead to the postponement of elections in the name of “soul searching” and for taking corrective measures. All that may prolong the political and constitutional crisis further, which will also mean the death of the constitution promulgated two years ago.