Arguments against the proposed chief justice led transitional government have generally taken two forms. First, the “it-is-not-constitutional” argument, which means it cannot be done. Second, the “it-is-not-politically-appropriate” argument, which means it should not be done. Both arguments have enjoyed their fair share of proponents. There are people, particularly those who read the interim constitution by the letter, who are on the side of the former argument and cite provisions of the constitution, which has been defunct for nearly a year. And there are people, particularly members of political parties, who are on the side of the latter argument, and see a chief justice led government as a slap on the face of political parties and their relevance. However, both sets of arguments lack any logical or legal basis.
Increasingly critical responses against the proposed CJ led government are threatening the little hope there is of a proper direction to the Nepali state. I am particularly astonished at the Nepal Bar Association (NBA)’s most unusual and unprofessional threat of “andolan” if a CJ led government is formed. This proposition is neither a revolutionary stand, and nor does it enjoy the support of principles. NBA’s harping on the arguments of “separation of power” and “constitutionality” are at best naive, and at worst a deliberate selective reading of the constitution. Moreover, the NBA’s proposal that a “less unconstitutional” step should instead be taken is riddled with confusions, and is also academically perverse. Any act or decision is either constitutional or unconstitutional, so there is no difference between a less unconstitutional decision and a more unconstitutional decision.
Besides, the normative purpose and relevance of the interim constitution ended last year on May 27. Nothing since that day has been ‘constitutional’, and if we are to stick to the literal words of the constitution, whatever is done next will be unconstitutional anyway. Therefore, people who argue that the CJ led government is not constitutional are at least nine months late. The present debate is not about constitutionality, but effectiveness.
It follows, therefore, that the arguments of “constitutionalism” and “separation of power” suffer from the short-blanket syndrome. They cannot address the present constitutional crisis. Even in America, the so-called “constitutional orderliness of transitions” has been proven ineffective, and most importantly, simply not true, in the history of constitutional law. In addition to empirical evidences from constitutional law and practices all over the world, there is a huge corpus of principle works which reject the argument of orderliness because of its failure to “provide guidance” to a society “trapped in a constitutional moment” (Levinson, Yale Law Journal 1998-99).
As a pioneer in constitutional jurisprudence during transition, professor Teitel writes that transitional jurisprudence itself is fluid in form, and constitutionalism during transition, rather than grounding itself to some constitutional order, serves to “mediate the normative shift” in society. As such, constitutions and constitutionalism are “epiphenomenal with, and arise by virtue of, the provenance of political change”. In other words, the political changes demanded in a transition cannot be and should not be impeded in the name of strict constitutional principles. If such strict constitutional principles were unexceptionally followed, the changes we witnessed and cherished in the spring of 2006 were also illegal and could not have happened. The only constitutional test relevant at this time is whether any act in question can ensure us the constitutional transformation. If the CJ led government can promise us the same, it is by all means constitutional.
Now this brings us to the “it-is-not-politically-appropriate” argument. This is a purely political question of should the CJ led government be made? The affirmative answer to the question is obvious and for everyone to see. I say this for two basic reasons. First, whether we like it or not, without all these political parties agreeing, there will be no solution to the present constitutional crisis, and there will be no CA elections. Despite their incompetence and arrogance, the so-called major political parties will continue to have their say in the transformation of Nepal’s constitution. Therefore, it is difficult to question the political efficaciousness of a decision largely based on consensus among major political forces. Second, from the outcomes, or lack of them, of recent discussions, it is simply very difficult to imagine the political parties agreeing on another option.
An act is either constitutional or not. There is no question of a decision being ‘more’ or ‘less’ constitutional.
Unfortunately, after the CA elections, political parties have only ridiculed the politically indispensable need for consensus and trust, essential for constitutional transformation. This in turn was mainly due to their unhealthy power play in regard to attaining executive power. In this context, the CJ led government has the promise of bridging that trust deficit and ensuring that we get another shot at constitutional transformation. That is, the CJ led government can remove, from the political equation, the very source of distrust and conflict among the political parties. There is no compelling answer to the possible question of why the CJ—and not any other independent individual? It was a political decision, and like many other political decisions of the recent past, it may not necessarily have a principle reason. Perhaps, the CJ led government was preferred over other options because unlike an independent individual, the CJ led government can bring institutional credibility, and unlike other institutions such as the Presidency, the Nepal Army, or bureaucracy, can avoid obvious political controversies or division.
In any case, political effectiveness of the CJ led government is also dependent on the leadership that the CJ can provide, and the sincerity of the political parties to assist him in his task. Similarly, in regard to my answer to the first criticism against the CJ led government, one should not construe that the CJ led government may do whatever it wishes to. As I said earlier, as long as the CJ led government can promise the change we desire, it is constitutional. The very change, and the principle content and aspirations permeating that change, can control and direct the CJ led government. Such control would perhaps prove far more appropriate and stronger than a mere rhetoric of separation of power.
The author is an advocate and also teaches law at Chakrabarti HaBi College of Law.