22-28 February 2013 #644

Indecent proposal, Kantipur

Binita Dahal, 19 February

Judging by his silence, it seems that Chief Justice Khil Raj Regmi does not want to lose the opportunity of becoming the next prime minister. He is fully aware of the principles of power separation, having studied each article of the constitution for 40 years. But with the top post in sight, he seems determined to write his name in history. That could be the reason he wants to avoid controversy before everyone agrees to his leadership.

The CJ has not done anything outstanding during the 20 months of his tenure, and there is no way to say whether he will perform better as PM, especially in times of constitutional crises. In case we forget, it was under his leadership that the number of justices in the Supreme Court was stuck at six, and instead of promoting people who performed well he sent them packing. People admired Regmi for not extending the Constituent Assembly’s deadline back in May, but that too played a part in inviting this crisis.

Among the three organs of the state, the judiciary is considered the most upright and justices don’t engage in open rivalries, in contrast to politics. How will a man who has spent 40 dignified years fare in the cat-and-mouse race for power? Unlike at the Supreme Court , where the CJ faces no pressure, at the PMO Regmi will have to compromise and keep everyone happy. What will happen to the judiciary’s clean image after the parties drag the CJ down to their dirty games?

PM Baburam Bhattarai knows all too well about Regmi. Dozens of decisions made by his government have been stopped by the SC, and court records show that no other government has made as many controversial decisions. Bhattarai has even said publicly that the SC did not let his government do anything. By bringing Regmi to the doors of Baluwatar, it is evident that Bhattarai wants to influence these cases. Amidst the political wrangling, will the CJ-PM be able to send people like Bal Krishna Dhungel to jail?

The UCPN(M) did not propose the CJ’s name for the PM’s job so that killers within the party get sent to jail. Having already given orders to free journalist Dekendra Thapa’s murderers, this government knows that merging the executive with the judiciary will work in its favour. If that is so, why does the CJ covertly show that he wants to leave his dignified career and entertain proposals floated by a party that grants amnesty to known killers? If that is not the case, why doesn’t Regmi speak up strongly against the proposal?

The opposition’s efforts to make Regmi prime minister just to replace Bhattarai will deliver momentary gain. They must realise that the Maoists only want to postpone election dates by floating Regmi’s name. So instead of trying to overthrow Bhattarai, they should work on strengthening the Election Commission to hold polls under Bhattarai’s leadership.

Letter to the CJ, Facebook

Suresh Prasad Acharya, President, Campaign for Informed Citizenry, 20 February

An open letter to Chief Justice Khil Raj Regmi, who looks tempted by the prospects of becoming prime minister, about the Constitution which says: ‘The sovereignty and state authority of Nepal shall be vested in the Nepalese people.’

1. Please remember that in the absence of a parliament, the sovereignty and state authority of the country automatically shifts on to the Nepali people.

2. The preamble of the constitution expresses full commitment towards a democratic system containing, amongst others, an independent judiciary. If this is so, i) should the incumbent CJ be under the direct influence of the four parties through a ‘political mechanism’ that has been recently agreed upon? ii) Who will a CJ-PM be answerable to in the absence of a parliament? and, iii) who will authorise court proceedings against the ‘last resort’ CJ-PM if his government can’t hold polls in June?

3. If the incumbent CJ is to become prime minister through ‘unconstitutional’ agreements between the four parties and ‘unconstitutional and unauthorised amendments’ to the constitution by the president, will it be necessary to re-examine or supercede the interpretation of law and constitution in the light of the then CJ Anup Raj Sharma’s decision over the Royal Commission for Corruption Control?

4. Will the Army, which has always claimed it will ‘only remain under the control of a constitutional government’, obey the orders of an unconstitutional government? In other words, how will you make the Army obey your command?

5. How do you, as CJ, explain Article 102 (4) of the constitution which gives the Supreme Court final power to interpret the prevalent Constitution?

6. Have you shown interest to become prime minister with the full knowledge of Article 103 (4), according to which you will have to declare that you are unable or not healthy enough to remain as CJ if you are to become PM, and will you demand from the four parties that they let you resign first?

7. How do you, as incumbent CJ, explain Article 106 (1-2) of the existing Constitution which places limitations on the postings of a Supreme Court justice?

8. Will you have to suspend Part 6 of the Constitution, which governs the nature of the parliament, as long as you are prime minister?

9. Will you also have to suspend the post of the chief justice as long as you are PM?

10. Will ‘Amendments to the Constitution, part 21’ have to be suspended before you become PM?

Click here to read the letter on Facebook

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