Using judges for election does not violate separation of powers
The decision of the four major political forces to appoint sitting Chief Justice Khil Raj Regmi as the head of the new election government has ignited heated controversy among political parties, intellectuals and the legal fraternity alike. Even within Nepali Congress and CPN-UML, large sections are still vehemently opposed to the idea of a sitting justice holding the top executive post. Kosh Raj Koirala and Mahabir Paudyal spoke to senior Nepali Congress leader Dr Ram Sharan Mahat to get a better understanding of the behind-the-scenes negotiations, the party’s position on the issue and the way ahead for the country.
Why is Nepali Congress rooting for CJ-led government despite growing opposition from within your own party?
This was not our first choice. We accepted it because no other alternative was acceptable to the ruling Maoist-Madhesi coalition. We wanted our own party president to lead the election government. So when UCPN (Maoist) wanted us to name our candidate, we proposed President Sushil Koirala. But they (the Maoists) backed out. Then we floated other alternatives like civil society leader Daman Nath Dhungana and former CJs. But they did not agree to this either. The sitting CJ was the only person they agreed to. Because, they said no other person could be as neutral as CJ. Under these circumstances, we accepted the CJ to head the election government. We thought if this was the only way to get rid of the present government and if it provided a way out, we should go for it.
Did Congress officially propose the names of Dhungana and former CJs?
We proposed these names during the meeting between three parties and Madhesi Front. But Prachanda flatly rejected it. He said the proposal came too late.
But in the process Congress has compromised on the time-honored democratic principle of separation of power.
I do not accept that allegation. Separation of powers means three organs of the state—the executive, the judiciary and the legislative—should remain independent. Then there are checks and balances. I accept that the two institutions—executive and judiciary—can’t be combined and don’t combine. In fact, I was the first person to oppose the idea when Prachanda floated it from UCPN (Maoist)’s general convention in Hetauda last month. I had publicly said that the head of the judiciary leading the election government was totally unacceptable. I even said Prachanda has made himself a political laughing stock by making such a proposal. But if the CJ, after assuming the executive office, is detached completely from judicial functions, that can be considered under a special situation.
Besides, CJ’s performance as the head of the government will be subject to judicial scrutiny by a separate judicial branch. There will be separate acting CJ when he (the current CJ) takes up the job of PM. Even after he completes his tenure and goes back to the judiciary, he will not be part of any decision concerning the actions of his government. In other words, if the CJ is kept completely divorced from judicial functions and the issue of conflict of interest is resolved satisfactorily through proper arrangements, then the principle of separation of power won’t be violated. After all, we are not the only country which is going to experiment with this option. In many other democratic countries, like Greece, judicial heads have held PM’s post to conduct the polls.
There is a concern that to rid of Bhattarai government, NC and UML have paved the path for a different form of authoritarianism. How do you respond?
The country could not accept Gyanendra’s authoritarian rule. Even Prachanda could not impose his authoritarian rule, nor could Baburam Bhattarai. How can I believe that a judicial head like Khil Raj Regmi would turn into an authoritarian ruler? Besides, public awareness is so high these days. There is the President as the guardian to protect the constitution, and political parties, the media and the civil society are strong check against such prospects. If any person nurses authoritarian ambition in this country he or she is bound to fail.
Hasn’t the recent deal given out the message that the political parties have been a complete failure?
I don’t call it a total failure. But their failure is obvious. They could not draft constitution in four years time. And for the past eight months there is a caretaker government with no constitutional, ethical and political legitimacy. Yet we are under this government. We have not been able to give an alternative. This is a failure. Let us be very frank. The whole political and constitutional process has failed. We are in the situation which the constitution had not envisaged. This is an abnormal situation which is outside the ambit of constitution. So you have to find the solution by going beyond the constitution.
There is an apprehension that CJ-led government won’t be able to hold the polls. How optimistic are you?
There are risks. But if political parties and all others cooperate with him fully, there is certainly a possibility. This is why the CJ was very careful. He wanted commitment from the four major political forces to hold the polls. He accepted the offer only after the leaders of four political parties offered the CJ total cooperation. Whether or not he will be able to hold polls depends on the extent of cooperation that political parties and other forces including the bureaucracy will lend to CJ’s government. It also depends on the quality of cabinet members he chooses.
CPN-Maoist and other parties have said they will boycott polls held under the CJ. They have even announced street protests.
If they believe in the constitutional process, they have to participate in the election. If they don’t, people have the right to question their democratic and constitutional credentials. But they have a point when they say that they should also be consulted. If we really want to seek solution to the crisis, we should take on board all other forces including the CPN-Maoist and Upendra Yadav-led Madhesi Front.
Some say CJ-led government was a Maoist idea. Sushil Koirala claims it was President Ram Baran Yadav’s idea. Whose idea was it anyway?
It was the President’s idea. After repeated failure to form consensus government and build consensus among the political parties, the President had no choice but to think of an alternative. He thought may be the sitting CJ could be the alternative. Prachanda knew this and announced the proposal during his party’s convention, which he should not have done. Prachanda’s intention was to sabotage the proposal. By announcing it in his party convention rather than by building agreement through interparty dialogue, he must have thought that he made the proposal unacceptable to other parties. Through this process, he wanted to kill the process. But what we are doing now is fighting his design by using his own proposal.
Many believe the idea of CJ-led government came from India and EU representatives. Even your President has spoken about the unrelenting pressure from the EU.
I don’t know about India. But I met some EU ambassadors when they came to meet our party President. They said that ‘if you think this idea is against the principle of separation of power, there are examples in Europe where CJ-led governments have conducted the polls. Last year it happened in Greece. What we say is that it does not violate the principle of separation of power if there are sufficient checks and balances. You have to hold polls at the earliest and have an elected government in place. Because lack of an elected government is denting Nepal’s image in the international community. And this could hamper potential development assistance and could harm your national interests.’ This is what they said. I have not met any Indian diplomats in connection with this proposal. I do not care where the proposal comes from if it is not against the interests of our country. There is a tendency in Nepal to smell conspiracy in practically every proposal. At the same time foreigners also try to give unsolicited advice. Both the tendencies are wrong.
What will be the nature of the election government?
We have not taken any decision in this regard yet. There are a lot of things to do. The proposal to remove difficulties is yet to materialize. Then there is a court hearing. No concrete step can be initiated before the court decision. Regarding the nature of cabinet, our proposal on the table is that it will be basically a technocratic government comprising of former civil servants and former officials of the judiciary with an impeccable record of public service and administrative experience and without any political affiliation.
How long do you think will it take to have a new government in place?
There are three steps to be completed. One, an agreement among the parties on removing constitutional hurdles is yet to be reached. Once we agree on this, such an agreement will have to be endorsed by the President by invoking article 158 of ‘removing difficulties.’ Then there is a case pending at the Supreme Court whose verdict is due on March 7. We have to await the outcome of these three things before any concrete steps are taken to form the new government.
How realistic is the prospect of June polls?
June is our target. But unless the new government is formed and it assesses the feasibility of holding polls in June how can you be sure elections will happen in June? If we cannot make it by June, there must be some flexibility. It can go up to November.
What will NC’s slogan for the new polls be? How will you answer the people who will accuse you of compromising on democratic principles by violating the principle of separation of powers?
Like I said before, people are free to make their own interpretations in a democracy. We have never made any compromise on fundamental positions. The political parties which believed in class struggle, revolution, and dictatorship of the proletariat, are now following in the footsteps of the NC, committing themselves to pluralism, multiparty system and competitive politics. Political parties that opposed foreign investment until recently are following the economic policies NC had initiated to attract private investment and FDI long ago.
Besides, Bhattarai, who claimed his was the only legitimate government to hold the polls is now giving way to neutral leadership. This is our victory, not loss. As for separation of power, there could be various interpretations. It is not absolute but a relative concept. Different democracies have different practices. Besides, we have been using judiciary to conduct the polls even in the past. Why do you forget that fact? In ever election all election officers are district or regional judges. The notion that using judges for election violates separation of power is wrong.
How do you think will NC fare in the next election?
There will be a huge support for NC, for sure. People had given new forces a chance. They have completely shattered people’s expectations. Now there will be a resurgence of support for us.
There is also a view that if the NC had joined Bhattarai government earlier, when Maoist chair Dahal was offering major portfolios to NC, it could have helped avoid the current crisis.
How could we join the government that we said had no moral, constitutional and political legitimacy? We could not have joined the government which unilaterally dissolved the CA on May 27. Yes, we should have brought the vote of no confidence against Bhattarai, when we still had CA in place. Yes, we should have come forward with alternatives, when they said they were ready to discuss third party alternatives. But I doubt Maoists would have accepted them. We made mistakes in the past. But not joining BRB’s government was not a mistake at all.