Setting a precedent for a politicised judiciary will mire Nepal in long-term instability
The main philosophical argument between those who favour the CJ
to lead the next government and those who don’t is that one side thinks it is an unacceptable breach of the doctrine of the separation of powers and the others invoke the doctrine of necessity.
The reasoning is that the political transition has dragged on for too long, the political parties are so blinded by their greed for power that they were incapable of resolving a paralysing stalemate, and this was the best of the bad options on the table. Political party leaders who had been disagreeing on everything, finally seemed to agree on the CJ deal (except for some "spoilers"). Even politicians like Sushil Koirala of the NC and KP Oli of the UML who had vehemently opposed the CJ formula as being ‘inspired by outsiders’ made a sudden, overnight U-turn last week.
This seems to have followed interventions by international interlocutors, some of whom it appears from media reports, were also instrumental in allaying some of Khil Raj Regmi’s doubts. As with everything else in Nepal, the involvement of a ‘foreign hand’ was invoked.
The first law of thermodynamics, as it were, in geopolitics is that every country looks at its own national interest first and there is no such thing as a free lunch in international relations. The second law states that geopolitics abhors a vacuum and if an unstable country fails to resolve its own problems, neighbours will be tempted to intervene. As Rwanda’s involvement in the civil war in Congo has shown, it doesn’t necessarily have to be a bigger neighbour interceding in a smaller one, it can be the other way around.
Except for India, and to a certain extent China, few other countries have an over-arching strategic interest in Nepal. The interests of our two big neighbours converge in Nepal: both want stability, even though it may be for different reasons. But we don’t have oil and gas, there are no strategic sea lanes here, this is not a hotbed of sectarian strife, and not since 1816 have we been a belligerent militaristic neighbour.
The spheres of influence are fairly well-established and unlike some other countries, like Syria, there isn’t among outsiders a dangerous proxy battle for influence here. In fact, the interest of outside powers is relatively benign, mostly an altruistic desire to alleviate poverty, and an obsession with social justice that some say is patronising.
If stability is indeed the main preoccupation of domestic and international actors, the question arises: is the dismantling of democratic institutions as is happening in Nepal now going to make the country more stable or less so? In the short-term, it could be convincingly argued that the political deadlock of the past year and the prolonged transition has been destabilising.
The country has been flying on autopilot, without a constitution, without parliament, without budgets, without accountability, with no hope for local and general elections. The economy was a wreck, a kleptocratic coalition had surpassed all past records for plunder, and development had come to a standstill. When all other options failed, the idea of the chief justice to lead an election government became the only one that worked.
Those who crave stability in Nepal may one day regret their support for the systematic dismantling of the very institutions that their own founding fathers designed as the checks and balances to guarantee a secure democracy. Setting a precedent for a politicised judiciary will in fact mire Nepal in long-term instability.
The best alternative always was an all-party government led by Bhattarai. Teckless NC and UML leaders must be ruing the day they opposed the Prime Minister's offer to join an all-party coalition. By refusing, they paved the way for their own ultimate acceptance of the unconstitutional and risky CJ option. Bhattarai saw an opening and with one deft move, gained the moral upper hand, defanged a pesky Supreme Court, undermined an uncooperative President, and delfated a fledgling agitation in support for democracy.
We now have to wait until 7 March to hear the Supreme Court’s own verdict on a writ against the appointment of the chief justice to lead the government. If the writ is quashed and the path is cleared for the CJ to take over, we have the whole other challenge of ensuring that elections, whenever they take place, are free and fair. More about that next time.