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Two weeks ago, the Supreme Court of Nepal pulled the country back from the brink when it deemed unconstitutional Prime Minister KP Oli’s decision to dissolve the federal lower house. Now it has undone that historic decision by dissolving the merger between the erstwhile CPN-UML and CPN (Maoist Center), by going beyond its jurisdiction. The forced unravelling of the communist merger could have all kinds of unforeseen consequences, most of them undesirable.  

Nepalis were buoyed by the apex court ruling reinstating the dissolved house, forestalling a constitutional vacuum. They applauded the judiciary which, despite pressure from the executive, had stood its ground: they were reassured that at least one state organ was politically unsullied and functioning in line with democratic norms.

No more. There is hardly a lawyer or constitutional expert who thinks the apex court made a sound decision this time. The overwhelming view among the legal community is that the court went beyond its jurisdiction in ruling the communist merger illegal, when all that it had been asked to do was decide if the name Nepal Communist Party (NCP) belonged to one Rishiram Kattel, and if the unified communist party jointly led by Oli and Pushpa Kamal Dahal had unjustly appropriated it.

In these troubled times when the executive has lost its mandate and the legislative has been in limbo, the apex court had the all-important role of keeping alive the flames of democracy. But its questionable verdict will add to public skepticism, not just of the judiciary but of the whole democratic apparatus. The verdict also opens up a political can of worms. The ruling is sure to be challenged. Erstwhile leaders UML leaders Jhalanath Khanal and Madhav Kumar Nepal have said they will return to the UML fold. There are also ex-Maoist leaders in Oli’s UML. Their fate is unclear. Nor is that of the Speaker of the House as well as those appointed to the National Assembly, the federal upper house.

Worse, if all the important decisions the NCP took are to be rendered invalid retrospectively, as now seems possible, just about everything the party-led government did over the past three years would be open to questioning. It will also set a dangerous precedent of largely political questions being settled by the judiciary.

This newspaper had supported the ban on the Netra Bikram Chand ‘Biplob’-led Communist Party of Nepal (CPN) after the group orchestrated a couple of blasts in the national capital at the start of 2019. The outfit was behaving less like a political party and more like a terror group. Its political existence should be recognized and formal negotiations for its mainstreaming should begin only when it unconditionally laid down arms, we had argued. The government seemed to agree. Today, the party is still to formally renounce violence and yet the same government that banned the outfit has started talking to it.

Whatever our earlier reservations, we would be happy if these talks led to a peaceful settlement of the CPN’s misguided armed revolt against the state. And in politics you can never rule out any outcome. Yet the timing of the current talks suggests the KP Oli-led government reached out to the armed group as the Nepal Communist Party faction Oli leads was running out of options. The Supreme Court put paid to Oli’s plans for snap polls. Now he is looking to shore up political support from anywhere he can get it, including from the radical left and the radical right.  

The NCP’s Oli faction has sent feelers to the pro-royalist Rastriya Prajatantra Party as the prime minister seeks to project himself as a savior of all Hindus in Nepal. The faction, meanwhile, is also courting disqualified Maoist fighters and now Chand’s outfit. If Oli wants to join hands with these forces under the status quo, he risks putting the country’s recent progressive gains in jeopardy. His government must also explain why it banned Chand in the first place if talks were to be later held with no change in the CPN’s violent modus operandi. 

If the armed comrades want to join peaceful politics, they should be welcomed with open arms. After all, the long and bloody Maoist insurgency would not have ended had the then insurgents not been given a space in mainstream politics. Yet right now many suspect Oli’s goal could simply be to use the muscle-power of Chand’s militia to hound and harass the leaders and cadres of the NCP’s rival Dahal-Nepal faction. If so, the already worrying state of criminalization of Nepali politics could get worse, and even as the victims of the Maoist war await justice, the use of violence will once again be legitimized.  

These are nearly hopeless times. Our lives have been thrown asunder by the Covid-19 pandemic and the ensuing economic and health crises. Perhaps millions of Nepalis have lost their jobs or are making do with a fraction of their pre-Covid pay. There is uncertainty and misgivings about vaccines: are all the real and rumored side-effects worth the trouble? In these otherwise gloomy times, the Supreme Court verdict on the evening of Feb 23 restoring the dissolved lower house of the federal parliament provides a rare ray of hope.

The verdict suggests at least one of the three main organs of the state is still functional and above partisanship. More than that, the verdict has prevented the country from plunging into a serious constitutional crisis. Had the apex court vetted the decision to dissolve the parliament on dubious constitutional grounds, the country’s rulers would have been given a carte blanche to abuse the national charter; and the barely five-year-old constitution would have lost most of its legitimacy.

The current government has done precious little to institutionalize federalism, the bedrock of the new constitution. Instead, the focus has been on centralizing powers by impinging on the jurisdictions of provincial and local-level governments. Appointments to top constitutional bodies were made arbitrarily. A culture of demonizing political opponents was recklessly promoted. Meanwhile, civil liberties were progressively curtailed. Things only got worse without a parliament to check government excesses.

The Supreme Court has put the derailed political and democratic process back on track. The five judges who issued the verdict on Feb 23 must be lauded for upholding rule of law. But wasn’t it their job? It was. Yet their brave, principled stand must be lauded in these partisan times when nearly every state organ has been thoroughly politicized.  

Due process must now be restored and the next course of action left to the sovereign parliament. We already hear rumors of dirty horse-trading as the jockeying to form the next government has started. Complicating the picture will be the uncertainty of the NCP’s status as a single party. Yet we can all take heart from the restoration of Nepali people’s supreme representative body, and from the message that no one, however powerful, is above the law.

Sher Bahadur Deuba espies an opportunity to hang on to his Nepali Congress Presidency. Even better, he reckons he might be the next prime minister. KP Oli’s dissolution of the federal lower house has been a blessing in disguise for the 74-year-old, four-time prime minister. In normal course, Deuba would be under intense pressure to promptly hold the party’s much-delayed general convention, its supreme decision-making body that also picks its leader. He has already been party president for five years, a year over the original mandate, thanks to the covid pandemic. 

By all accounts, Deuba’s four years as president have been a failure. The party under his leadership was trounced in the 2017 general elections. Since the formation of the communist government, his voice as the leader of the main opposition has also been very weak. Hounded by his critics, and perhaps aware that he might not win party presidency from the general convention floor again, Deuba has looked to pack party committees with cronies and has repeatedly postponed the convention.

Now the party’s Central Working Committee has proposed to hold the convention on August 23-26, in around six months’ time. But it’s easier said than done, with the fate of the dissolved house still hanging in the balance as the Supreme Court hears the case. If the house is restored, there will be an immediate prospect of Deuba becoming prime minister, in which case he will again seek to buy influence in the party. If the house is not restored, the Congress party will be in on election-mode, which in turn will result in as yet unpredictable circumstances that Deuba can use to his advantage. 

Again, for the Nepali Congress, the problem is not so much the country’s current state of flux as the power-centric mindset of its top leaders, especially Deuba. The incumbent NC president has been ready to bend rules and subvert internal democracy to hang on. So far the intra-party opposition to Deuba has been weak, again due to other political leaders’ own calculations on distribution of power and privileges. Entirely missing is any kind of ideological discussion on the party’s future course. Given such petty and self-serving calculations inside the main opposition party, it is hard to see how a future Congress government will be any better than the current, much-reviled one under the divided NCP.