Deuba’s onslaught on democracyCongress leader’s move to appoint a non-parliamentarian minister at chief justice’s behest is going to live in infamy in the annals of Nepal’s political history.
When Nepali Congress leader Sher Bahadur Deuba was appointed prime minister as per a Supreme Court order in July, it was largely hailed because it ousted KP Sharma Oli of the CPN-UML, as the latter’s misadventures were posing a grave threat to democratic principles and the constitution.
The Supreme Court was heaped with praise for helping save the constitution, for a second time. Earlier in February also, the Constitutional Bench led by Chief Justice Cholendra Shumsher Rana had overturned Oli’s December last year decision to dissolve the House of Representatives.
Deuba’s return to power actually was unparliamentary, as he was not elected by the House but was installed directly by a court order. Besides dissolving the House twice, Oli had made several other moves, including amending the Constitutional Council Act and treating sub-national governments as administrative units of the federal government, which were described by experts and observers as attempts to dismantle the system, one step at a time.
Deuba as the opposition leader, however, was not as critical of Oli as other politicians were–sometimes making many wonder if the two were close allies.
When Deuba won the House confidence with overwhelming votes on July 18, he had just a few tasks to perform–protect the constitution and uphold democratic values, make the fight against Covid-19 more effective, and prepare the country for the elections that are due.
But he struggled. He could not expand his Cabinet for three months. And when he appointed ministers on Friday, he left the constitution teeter on the brink. One of the ministers appointed by Deuba is Gajendra Hamal, a district level leader of the Nepali Congress. Hamal is said to have been given the ministerial berth because Chief Justice Rana wanted so.
Political analysts and observers say appointing a non-parliamentarian as a minister because the head of the judiciary wanted him in the Cabinet threatens democratic principles. What Deuba has done is the final nail in the coffin of the constitution, they say.
“Democracy is under threat as no one is paying heed to the basic tenets of democracy,” said Daman Nath Dhungana, former Speaker and a noted civil society member. “Just holding periodic elections does not strengthen democracy. Politicians must uphold democratic values and principles and stick to the constitution and rule of law in letter and spirit.”
Though Deuba is receiving much flak for appointing Hamal as a minister, insiders in the ruling alliance say chiefs of the coalition partners had agreed on his name, as “the chief justice wanted him” in the Cabinet.
Pushpa Kamal Dahal, chair of the Communist Party of Nepal (Maoist Centre), Deuba’s key coalition partner, on Saturday defended the decision to appoint Hamal, saying the constitution has provisioned appointment of any non-parliamentarian as a minister.
“He [Hamal] is a Congress leader and he has been appointed a minister under the Nepali Congress quota,” said Dahal in Chitwan on Saturday. “There is no reason to make a hue and cry over this.”
While Dahal’s argument that the constitution allows appointment of a non-parliamentarian as a minister is not wrong, it is apparent the provision has been misused. The constitution envisaged such a provision for the prime minister to have experts in the Cabinet, if need be. Hamal is not an expert.
Hamal can now serve as minister for six months. For him to continue after six months, he must be made a member of either the House of Representatives or the National Assembly.
Dahal’s defence, however, comes amid opposition from members of the Nepali Congress.
“The decision to induct Hamal into the Cabinet has put us in a difficult situation. We are under scrutiny and rightly so,” Gagan Thapa, a Nepali Congress lawmaker, told the Post. “What prompted the prime minister and ruling party leaders to take such an unpopular, undemocratic and unconstitutional decision that also goes against the basic principle of rule of law and political and constitutional system that we want to adopt.”
When Oli on December 15 issued an ordinance to amend the Constitutional Council Act, making convening of the Council meetings and making recommendations easier, it was seen as a move that completely disturbed the principle of checks and balances.
The Council is a body that nominates officials in various constitutional bodies. Led by the prime minister, the council has the chief justice, Speaker, National Assembly chair, deputy Speaker and the leader of the opposition party as members. Oli had amended the provisions in such a way that the council could hold meetings even without the Speaker and the leader of the opposition. At that time, Deuba was the leader of the opposition.
Chief Justice Rana participated in the meetings without questioning Oli’s motive and the council made over 50 appointments. The constitutional appointments have been challenged in the Supreme Court, but Rana has not taken any concrete steps to settle them.
Reports suggest Rana had demanded a share in the Cabinet earlier also when Oli was prime minister.
The UML, which has been opposing the Supreme Court’s order to appoint Deuba as prime minister, said its concerns have been finally vindicated by Friday’s development.
“Inducting a non-parliamentarian, someone who is a relative of the chief justice, into the Cabinet is a serious incident,” Pradeep Gyawali, spokesperson for the UML, told the Post. “Hamal’s appointment as minister has proved that the July Supreme Court order to restore the House and appoint the prime minister was politically motivated, which we have been saying all along.”
What is more worrisome is, according to Gyawali, the thin but important line between the executive and judiciary has now been blurred.
“We have strong reservations about this appointment and we will protest,” said Gyawali.
Some Nepali Congress leaders said the Hamal appointment has put the party to shame and constitutional values at stake and that they are not in a position to defend the decision. This appointment can have huge repercussions not only for the party but also for democracy, according to them.
“There was no discussion within the party about ministerial appointments,” Gururaj Ghimire, a youth leader from the Congress party, told the Post. “When it comes to dismantling the system, Deuba appears to be more dangerous than Oli.”
According to Ghimire, a handful of leaders in his party “knew about” Hamal’s appointment.
“But those who knew did not oppose it because they did not want to risk their chance of becoming ministers,” said Ghimire. “Or else why would they remain silent despite reports that the chief justice was demanding a share in the Cabinet. Now how can we defend such an undemocratic and unconstitutional move.”
In the lead up to Friday’s Cabinet expansion, the Supreme Court on October 4 had issued a statement refuting media reports that the chief justice wanted ministerial berths for his people. Reports suggested that the chief justice actually wanted two ministerial berths.
But the question remains even if the chief justice was looking for his share in the Cabinet, what made the executive to oblige? The principle of separation of powers distinctly defines the executive and the judiciary as two distinct entities that should function independently. Neither the judiciary nor the executive can coerce each other into doing anything.
On Saturday, a day after expanding the Cabinet, Deuba admitted that “some competent and capable friends” have been missed out.
Even if the chief justice sought his share, Deuba had a chance to reject it, but it seems he was under pressure to oblige for reasons only he or his coalition partners know.
The incident, however, does no good to Deuba’s image, which has not been impressive. Earlier in the past, Deuba has served as prime minister four times. His accidental return to power in July provided him with an opportunity for an image makeover.
His Friday’s move will go down in history as one of his blunders, which has not only set a bad precedent but is going to be detrimental to democratic principles. His failure to resist pressure from the chief justice, if there indeed was any, will now live in the annals of his political history as his incompetence. It was also a Friday 19 years ago, on October 4, 2002, when then king Gyanendra had sacked Deuba branding him “incompetent”.
Political observers say if the executive and the judiciary work in cahoots to kill the checks and balances, the key tenet of democracy, at a time when the legislature, the third key state organ, has been rendered dysfunctional, the country is doomed to fail.
“The recent incident is a stark example of power corruption. This clearly indicates that our institutions are decaying,” said Dhungana, the former Speaker who had contested the 2017 elections on the Congress ticket, but lost. “Those who are supposed to protect the constitution and democracy are bent on dismantling the system. Some media must realise that they were wrong to portray these people as the saviors of democracy. An introspection is a must on everyone’s part.”