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On the cusp of a possible second wave, the country is reeling under a shortage of Covid-19 vaccines. The vaccination program for those under 60 has been suspended. Following the legal split in the ruling Nepal Communist Party, Prime Minister KP Oli is completely focused on knitting together a majority in the 275-member federal lower house. The opposition parties—Nepali Congress, JSPN and breakaway CPN (Maoist Center)—too have tried to form an anti-Oli coalition. Both the efforts have failed, and it could be some time before a majority government is formed.

Big differences separate negotiating parties. Oli’s CPN-UML wants JSPN to unconditionally join the government, perhaps in return of a handful of lucrative ministries. The nationalist prime minister won’t amend the national charter as per JSPN demands; nor will he be keen on releasing Resham Chaudhary, the alleged mastermind of the 2015 Tikapur killings, again for the fear of a nationalist backlash. As negotiations drag on, JSPN could split, if enough of its leaders get the ministries of their choice. This could be a risky course for breakaway Madhesi leaders ahead of the federal elections. 

Nepali Congress leader Sher Bahadur Deuba either gets to be prime minister again, or all government-formation negotiations are off the table. Biding time, he seems to have calculated, is the best course of action now. If he is offered the PM’s chair, all and good; if not, he could still emerge as the leader of the largest parliamentary party after federal elections. JSPN knows Congress too is in no position to address its constitution-amendment demands. In that case, the party should get to lead the tripartite Congress-Maoist-JSPN government, its leaders argue. Meanwhile, Pushpa Kamal Dahal’s revived Maoist party wants Oli out at any cost. 

Oli, who has not stepped down even after the court’s restoration of the house he dissolved, is no statesman. Perhaps he even feels vindicated following yet another Supreme Court verdict, this time dissolving the ruling NCP. The truth is that he has failed to govern the country in the past three years, including during the dark days of the pandemic. That there is no good option to replace him works to his favor, but to great disfavor of the nascent federal democratic republic he leads.  

If Daniel Kahneman struggles every day to overcome his biases, there isn’t much hope for the rest of us. All of us like to validate our preconceived notions, inserting selective reasons to justify our ends. That’s how we are built. Yet it is possible to spot biases, if after the fact, and to resist from making the most egregious errors of judgment. Social science would otherwise be pointless, and all news and views useless. This is why curtailing free speech is never a good idea as well. Even from seemingly discordant cacophony of biased voices, a sliver of nuance can—and does—often emerge. 

Yet what we see is creeping danger to free speech, around the world, and increasingly in South Asia. Perhaps the situation is the worst in Bangladesh, where 13 journalists have been killed in their line of duty since 1992. India is catching up. The Modi government has effectively bought off or co-opted India’s most major media houses. With the new laws on online media and social media, even the few remaining critical outlets could be silenced. To hit home its point, celebrities who have criticized the government have been framed for crimes. 

The situation in Nepal is troubling as well. Existing or proposed laws curb the freedom of online media outlets and criminalize social media posts the government deems inappropriate. Another troubling trend is also taking hold. If you write or broadcast something that doesn’t chime with biases of social influencers, the latter often go into a rabid attack-mode. The goal becomes not to engage in vigorous debates on important topics, but to shame and silence those they disagree with. In the end, what ends up happening are not so much informed debates as shouting matches over social media. This, of course, only gives the illiberal government an added excuse to regulate unruly online outlets and views.

But whatever the case, functioning democracy and regulated speech just don’t go together. Principally, freedom of speech should be absolute. Once you start regulating it, you are on a slippery slope. Practically, only the speech that overtly promotes violence, disturbs inter-communal harmony, and dehumanizes people of certain class, faith and gender should be out of bounds. Monitoring ‘foul language’ and ‘sensitive content’ is, in a way, dehumanizing people. Strong emotions and biases are part and parcel of being human—and you cannot regulate human nature.    

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.