The court verdict is a temporary respiteThe pyrrhic victory of democracy has restored judicial supremacy in place of Parliament’s sovereignty.
The incumbent president of Nepali Congress Sher Bahadur Deuba holds the dubious distinction of being the only prime minister in the history of the country to have been sacked for his 'incompetence' to hold the polls on the promised date. Back in October 2002, he had meekly accepted his disgraceful dismissal and gone back home to sulk and seek the guidance of astrologers for appeasing appropriate stars on his birth-chart.
When reappointed to the post in 2004, Deuba had profusely praised the 'wide chest of the king', 'the greatness of the monarch' and the sense of ‘justice of the Gorkhali ruler'. Steeped in the feudal tradition, he knew that fealty to the overlord was his duty and justice was just munificence of the sovereign rather than the just reward for unflinching loyalty of the vassal to the throne.
Unlike the refined manners of the landed gentry in Madhes, liegemen of the western hills in Nepal aren't too well known for their politeness. Even a stint as a visiting scholar at the London School of Economics has failed to temper the characteristic bluntness of Deuba. He speaks his mind and acts according to his impulses without any regard for political correctness.
Defending his unseemly prevarication over the dissolution of the Pratinidhi Sabha, he recently admitted without remorse: ‘I had thought that the Supreme Court would issue a stay order. But since this did not happen, I had publicly told that NC would accept both reinstatement of the parliament or a decision to go for a fresh election.’
Like a broken clock that is right twice a day, both of Deuba's postulates appear to have been grounded in political reality. Prime Minister KP Oli's decision to dissolve the house was ultra vires and it had deserved to be overturned on the basis of prima facie unconstitutionality through a stay order. Since an immediate reprieve to the petitioners was denied, Deuba was correct in his conclusion to wait, watch and equivocate.
Any opposition party in a parliamentary democracy needs to be prepared for snap polls at all times. Deuba was also right in using Oli’s recklessness to shake his own party from its despondency. A face-off at the hustings with a divided adversary was an alluring prospect.
In power games, correct assessment is no guarantee of political success. Reinstatement of the Parliament has put Deuba in his place, which is that of an appendant of the ruling party in the Constitutional Council after the amendment to the relevant act through an ordinance. Even if the Election Commission formalises a division by conferring legitimacy on a faction of the ruling party, it's not very likely that either of the groups will easily accept him as their leader.
The constitutional bench of the Supreme Court has restored the status quo set before December 20 last year. For now, it implies that Oli is the leader of the ruling party in Parliament; Deuba is the head of the main opposition. All that the Pushpa Kamal Dahal and Madhav Kumar Nepal duo can claim is that they are dissidents of the ruling party with a sizable following in the country. The legal battle of over two months has produced no political winners.
Premier Sharma Oli retains the legitimacy to hold on to the post, but has lost the moral authority to govern. In any case, taking a principled stand has little relevance in either Bahunism or Marxism-Leninism of the Jhapali variety. Oli's challenge to the dissidents to oust him through a no-confidence motion in the parliament appears like the quarrelsome tantrum of a sore loser. Forget moral grounds, the prime minister is extremely unlikely to resign at this juncture for any reason and risk being cast into political oblivion.
The full court order is still awaited, but there is little consolation in the verdict even for the politics of Messrs Dahal, Nepal & Associates. Their laddu-feeding photo-op was a little premature, to say the least. Dahal is likely to remain in his rented house as long as Oli doesn't vacate his official quarters at Baluwatar. Exercising little influence in intraparty feuds, Nepal will have to learn to be partially employed in full-time politics.
The one saving grace of the court's ruling is that it has put a brake on Oli’s dictatorial ambitions. Even when enthroned through legitimate means, rightwing politicos turn towards absolutism. Totalitarianism is the defining characteristic of leftwing extremism. Leaders like Oli with fluid ideology prefer authoritarian ways of entrenching themselves in power.
Sharma Oli has been pushing the pedal to the floor as the needle of the legitimacy gauge moved from the green of democracy through the yellow of the fundamental freedoms at risk towards the red zone of an executive authority unfettered by the moderating influence of the legislature. Having packed constitutional bodies with his personal loyalists, he was heading towards lifelong employment as a 'Dear Leader' of Nepal under the pretext of political stability.
The pyrrhic victory of democracy, however, has ended up restoring judicial supremacy in place of the sovereignty of the Parliament in the country. When lawmakers meet on March 7, 2021, they will have to accept that they owe their remaining tenure to the Constitutional Bench of the apex court rather than to their constituents.
It has been repeatedly shown that when politicos choose to play dicey games, the permanent establishments of the country always wins. King Mahendra played with ambitious leaders without adequate political base inside Nepali Congress to oust the party with a two-thirds majority in the parliament from power. The rift in the party ensured the collapse of the first majority government after the restoration of democracy in 1990, which rehabilitated discredited relics of the Panchayat regime in the mainstream.
In the post-1990 period, the tradition of judicial supremacy began when the leading drafter of the constitution agreed to become its principal interpreter as the Chief Justice of the Supreme Court and restored a duly dissolved parliament in the name of political stability. When the constitution says what the judges decide it says, it loses its dynamism. Touted as one of the best constitutions in the world, the statute of 1990 didn't survive the trial and tribulations of law courts.
When then-chief justice Khil Raj Regmi ruled that the term of Constituent Assembly couldn't be further extended and then went on to assume the responsibility of the chair of the interim election council a few months later, the interim constitution of 2007 died a painful death. The country once again went under the control of the permanent establishment.
The Indian constitution aims to chart a middle course between the doctrine of parliamentary sovereignty prevalent in Britain and the principle of judicial supremacy existing in the US. With the creation of a powerful judicial council and the vetting by parliamentary hearing, Nepal wanted to be even more careful in ensuring popular constitutionalism. The meandering path has turned out to be a middling one at best.
For every action, there is an equal and opposite reaction. If the restored parliament fails to oust Sharma Oli, perhaps the legislature will receive the axe once again and the judiciary will be his subsequent target. The court verdict is a mere respite. The cure of constitutional disease has to be found in politics.