In no established democracy has Chief Justice held executive post
The UCPN (Maoist) proposal for election of a sitting Chief Justice as the new prime minister has raised a storm of controversy. Why a sitting Chief Justice? Are the Maoists trying to dismantle the last remaining organ which could check government excesses? If so, what could be its impact on national politics and the judiciary? Republica’s Biswas Baral and Gani Ansari talked to senior lawyer and constitutional law expert Bhimarjun Acharya to understand the motive and implications of the new Maoist proposal.
How do you evaluate the proposal of UCPN (Maoist) to make the sitting Chief Justice the new prime minister?
I believe this is a completely flawed proposal. There are four main reasons I say this. One, Article 106 of the interim constitution forbids the deputation of the sitting Chief Justice and other justices of the Supreme Court to any other work besides those related to the judiciary. Clause 2 of the same Article prevents retired Supreme Court justices from being deputed anywhere except the National Human Rights Commission. The basic philosophy is that the judges do not carry out their responsibility expecting future rewards. Two, Nepal’s is a party-based system. In such a system, political representatives should run the state machinery. If today the political parties shift that power to some other place, there is no guarantee that the power will return to the political parties.
Three, there is the question of check and balance and separation of powers. All established democracies in the world follow this principle. In order to safeguard liberty and uphold the constitution and rule of law, the three organs of the state must have different structures, functions and powers. If all the powers are concentrated in one person, the whole system becomes corrupt. If the same person is made the head of the judiciary as well as the executive, that would be a perversion of democracy. Four, the proposal is also not pragmatic.
PHOTO: BHASWOR OJHA
At a time when even established political parties are struggling to manage the fluid political situation, it is unrealistic to hope that a non-political person might do the job. Ultimately, if the proposal of sitting Chief Justice as prime minister passes, there will be no election, the party system will collapse and the country’s judiciary will be in shambles.
Chief Justice Khil Raj Regmi has been silent on the whole affair. How have you interpreted his silence?
His silence is unfortunate. At a time there has been so much controversy around him, he should have been able to say he is not interested in the Maoist proposal as it is against the norms and values of independent judiciary. His silence suggests a few things. First, it raises the suspicion that the current proposal was brought with his consent. It also brings into question the past decisions of the Supreme Court, like its verdict against extension of the Constituent Assembly. Second, all those occupying responsible positions, be it the President, the prime minister or the chief justice, should understand that no one is above the law. There is a trend in Nepal to believe that once you get to certain influential positions, you have the liberty to subvert the law. They should rid themselves of this illusion. The Chief Justice derives his power as the head of the Supreme Court and the judiciary from the constitution. Now just because some political party has proposed him as the prime minister, he cannot go against the constitution. I interpret the Chief Justice’s silence as a slap on the face of rule of law, constitutionalism and Nepal’s rich judicial legacy.
The Maoists have been accused of trying to dismantle all organs that can hold the government accountable. Do you believe the proposal of sitting Chief Justice as prime minister is a part of that plan?
Yes, there are many reasons to think so. We can take the documents and utterances of the party which brought this proposal as our points of reference. In many of their documents, the Maoists have alleged Nepali judiciary of being status quoist, which is reluctant to embrace change. They have alleged Nepali judges of being regressive. Their leaders also repeatedly talk about the biased judiciary. Now the Maoists are trying to paint the head of the same judiciary as a progressive who is capable of extricating the country from the current quagmire. No sensible person can believe that this proposal has come in good faith. It is unfortunate that the judiciary, the Chief Justice and other political parties have not been able to understand this. This proposal has not come with the intention of holding an election but to destroy any remaining integrity of the judiciary.
What are the implications of appointing a sitting Chief Justice as the executive head?
First, if the sitting Chief Justice is made the prime minister, he at once becomes the head of both the executive as well as the judiciary. This is an anti-thesis of democracy, rule of law and separation of powers. The message it will send is that Nepal is no more a democratic country. Second, the integrity of the judiciary will be compromised. Third, it will send a message that Nepali political parties have been a complete failure and are incapable of running the country.
What if the Chief Justice is made the prime minister after his resignation from the judiciary?
The message will be the same more or less. The capability of the political parties and the integrity of the judiciary will still be questioned, and it will still go against Article 106 of the interim constitution which forbids any sitting or retired Supreme Court justices from holding any government office. To say that the constitutional hurdles will be cleared if the Chief Justice takes up the PM’s post after resigning from his judicial duties is a lie.
But aren’t there international precedents of the Chief Justice leading an election government, as in Bangladesh?
In no established democracy has a sitting or retired Chief Justice held the chief executive post. The trend exists only in some transitional and authoritarian democracies. Yes, there was a provision in Bangladesh whereby the sitting judge as the head of an advisory council could hold election. But this constitutional provision has been removed since it went against the principle of check and balance and separation of powers. There is still such a provision in Bhutan. But how can the authoritarian Bhutan be a role model for Nepal? In Egypt, a similar arrangement has been highly controversial. Again, no established democracy has such an irresponsible system.
What is the harm in electing the Chief Justice as new prime minister if it helps provide a breakthrough in the long-stalled political and constitutional process?
Let no one be in any doubt. The current Maoist proposal does not come with any intent of ending the protracted political and constitutional crisis. There are hundreds of options for new prime minister. Why are the Maoists insisting on a sitting justice? If the Baburam Bhattarai government can take the opposition into confidence, he can hold the election himself. Or the Bhattarai government can make way for a government led by one of the opposition parties. Still another option is fresh polls under the leadership of any of the 33 parties represented in the erstwhile Constituent Assembly. If all these options fail, there are countless Nepalis who are competent to become the prime minister. The reason the Maoists have been insisting on the chief justice despite the availability of all these options is that they want the whole system to collapse.
If the current Chief Justice reigns, how will the void at the top of the judiciary be filled?
The Chief Justice is the head of the Judicial Council which makes recommendations on new Supreme Court judges, including the Chief Justice. In the absence of the Chief Justice, the council will not be able to sit. Thus if the Chief Justice is appointed the prime minister after he resigns from the judiciary, it could invite an even bigger crisis.
Constitutionally, what is the best way out of the current crisis?
The current crisis is centered on government formation, new election and filling of vacant constitutional bodies. To some extent this is a constitutional crisis, but to a larger extent it is a political crisis. The crisis of government can be ended by stepping on Article 38 (1) of the interim constitution, which provisions for consensus government. The government can be formed in one of the four ways I discussed above. It is said that there are constitutional barriers to election, but that is a lie. The election can be held without any amendment to the interim constitution. All that we need are new electoral laws, which can be brought through an ordinance. But there is a constitutional hurdle to appointments in constitutional bodies, which call for parliamentary hearing. The President can clear this hurdle by using his prerogative to ‘remove difficulties’.