South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

The Interim Election Council headed by Chief Justice Khil Raj Regmi has been welcomed across the spectrum, but the fact that it possibly constitutes the severest blow to the only credible institution in Nepal—the judiciary—has been ignored. Regmi was offered the anointed post as the four big political parties could not find an acceptable prime minister to hold elections. Since nothing else matters in Nepal except consensus among the big four, any other prominent Nepali should have been appointed as the prime minister, save the chief justice, precisely because the Supreme Court of Nepal has been the only institution which cross-checked the four big political parties in the last five years. With Regmi’s acceptance, the judiciary now finds itself drawn into the same mess.

Regmi accepted to head the Interim Election Council even though the Supreme Court had admitted two public interest litigations (PIL) against his appointment. Thereafter, the Supreme Court admitted a writ petition against the re-appointment of retired election commissioners into the current Election Commission. Even President Ram Baran Yadav expressed doubts. Yet on March 24, the Interim Election Council appointed the same retired election commissioners. This practice of making notices by the Supreme Court has one debilitating impact: the credibility of the Supreme Court is at an all-time low.

Furthermore, the Supreme Court is all set to run out of quorum to adjudicate on constitutional matters because of the non-appointment of judges. At present, there are only five judges in the Supreme Court against the sanctioned capacity of 14. Though Nepal’s Interim Constitution is silent on the number of judges required for the constitutional bench, it is pertinent to mention that the constitutionality for extension of the time of the now defunct Constituent Assembly was adjudicated by a five-member bench headed by Justice Regmi. If a single judge superannuates or is incapacitated from the current lot, the quorum to decide on constitutional matters will be lost.

Yet, Nepal being run without a quorum in the Supreme Court to adjudicate on constitutional matters is unlikely to draw any international attention. In South Asia itself, the Maldives and Bangladesh are currently far more unstable than Nepal, and the situation in both countries is all set to deteriorate in the immediate future.

Furthermore, unlike in Bangladesh and the Maldives, international action on Nepal is stymied by India. Though Ambassador Jayant Prasad represents a marked shift from his predecessor Rakesh Sood, he has largely been following the script outlandishly articulated by the then National Security Advisor MK Narayan in March 2008 that India prefers the Nepali Congress over the Maoists. Baburam Bhattarai, instead of Prachanda, was accepted as the prime minister on the alleged unwritten understanding that after adoption of a new constitution, the prime ministership would be handed over to the Nepali Congress to hold the elections. Bhattarai reneged as he, together with Prachanda, found a Putin-Medvedev solution by hoodwinking the opposition to accept the idea of executive president and executive prime minister in a new constitution. With elections slated for May 2013, India considers the absence of violence and the latest developments as very positive for Nepal.

Organising the elections by June 21 remains a Himalayan task. Apart from the PILs against the re-appointment of the retired election commissioners, the Election Commission, among others, has yet to complete the voters’ registration necessary to hold the polls. About 10.11 million eligible voters are registered out of a total 17.6 million that were registered for the 2008 Constituent Assembly elections. Since then, about 15.4 million individuals have reached 18 years of age. They are eligible to vote and must be enrolled. Furthermore, registration of voters has been the most contentious issue in the Tarai, and an estimated 3.5 million Madhesis have been deprived of citizenship. They ought to be issued citizenship prior to the registration of voters. CPN-Maoist cadres have also been successful in disrupting registration. Upon completion of voter registration, adequate time must be provided for registration of political parties, printing of ballot papers and campaigning prior to holding the elections.

Even if the elections are to be held by June 21, there is no guarantee that the current stalemate will be broken. No political party or alliance of political parties is likely to get a two-thirds majority required to adopt the constitution, not to mention settle the disputes over the federal structure of future Nepal. The UCPN (Maoist) are unlikely to improve their existing tally given the anti-incumbency factor, splitting of the Baidya faction and general disillusionment among rank and file cadres with the rehabilitation besides grievances against the lifestyle of rich Maoist leaders.

The Nepali Congress and the CPN-UML are also unlikely to fare better. The Madhesis, despite numerous splits, are expected to retain their seats as the three main political parties do not have any hold in Madhes. It would be déjà vu: The big four political parties would not agree on the prime minister.

It is clear that with or without elections to the Constituent Assembly, Chief Justice Regmi’s rule will be prolonged. The mandate of the Interim Election Council, as the name suggests, is to hold elections. Yet, in a clear breach of its mandate, it went on to the issue the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance with the power to recommend amnesties for serious human rights violations. Since the big four political parties agree on impunity, this has not created any flutter except the filing of two separate writ petitions challenging the ordinance. However, if Regmi’s rule is to continue beyond June 21, surely the honeymoon with the big four political parties will sour.

If Nepal is not to descend into further anarchy, the Supreme Court must assert its independence and exercise its supreme power more than ever before. It must adjudicate propriety and legality of the decisions taken by the country’s executive head, that is the Chairman of the Interim Election Council. Regmi, on his part, should immediately resign as chief justice to avoid further conflict of interest as his continuing as chief justice hampers discharge of duties by the current justices.

Chakma is the director of the Asian Centre for Human Rights.

Source: – 01/04/2013 (