Halting Executive’s Aberration

Dr. Narad Bharadwaj

The interim order of the Supreme Court, issued Sunday to stay the decision of the government to appoint DIG Jaya Bahadur Chand as the Chief of Nepal Police, has proved that the principle of separation of power is an unfailing safeguard of democratic value system.  It has also brought to focus that in time of critical emergency, democratic institutions eventually rise to the occasion to exert checks and balances against tendency to monopolise the authority of a state.

Separation of power

Separation of power is one of the inalienable principles of democratic governance and a vital element against arbitrary use of state power. For a democracy to succeed, the three organs of state -- the executive, judiciary and legislature -- must interact and influence each other in a balanced and responsible way.  When one component tries to transcend its boundaries, it is bound to meet resistance from the other two.

French Philosopher Montesquieu had propounded the principle of separation of power as a tool or resisting tyranny and promoting liberty of individuals. According to this principle, the three organs of state are considered divided yet dependent on each other. While exercising authority, one organ cannot supersede the other two.  Still, the three organs of the state cannot hold exclusive positions in all the issues and remain in a state of perpetual standoff. A robust democracy can be ensured, if the three organs of the state maintain a dialectical relation of opposing transgression and respecting each other’s jurisdictional spaces.

The Supreme Court of Nepal, despite its precedence of making controversial decisions in the past like the restoration of the parliament dissolved by former prime minister Man Mohan Adhikari, it has remained an impervious bulwark of justice especially in post democratic era. Its intervention against the violation of norms and principles of democracy are highly appreciable.

 By issuing a stay order against the executive’s attempt to violate established norms of leadership transition in security agencies, the Supreme Court has cautioned against the tendency of the executive to lapse into an arbitrary use of state power. 

The coalition government led by Prime Minister Pushpa Kamal Dahal Prachanda had flouted the hallowed principle of non-interference in the autonomy of state institutions. The government could stay untainted if it had abided by the established norms and legal precedence with regard to the organisational management of security institutions. By appointing someone who ranked third in seniority, the government had not only flouted the principle of meritocracy, it had also disrupted the established chain of command threatening to shake the moral and ethical foundation of the police force in Nepal.

 Chand’s appointment became more contentious also in view of the media information that he was recommended by Nepali Congress President Sher Babadur Deuba with a view to strengthening his position in the forthcoming elections. In a politically charged situation, when the tension between the ruling and opposition alliances is running high, the government had to anticipate someone to move the court to nullify its decision. By taking a risky decision in total disregard for the signals being transmitted by media and opinion makers, the government has deliberately opened a can of worms. This act has created a chasm in the well-knitted organisational solidarity and cohesion existing so far in the police force and has instilled a sense of insecurity among the rank and file.

The writ petition which DIG Nawaraj Silwal has filed at the Supreme Court claiming his eligibility for the appointment as the top cop, threatens to establish a precedence of litigation for securing promotion in security institutions.

 In democracy, rules and procedures help keep political ambitions at bay, cultivate ethical norms, develop leadership quality and inspire accountability in the exercise of authority. Democratic institutions, groomed and nurtured carefully, dare to stand in the way of political ambition to foil the arbitrary use of power.

The succession process of security institutions, especially the army and the police, is a very sensitive issue. Disruption of the long held tradition of unimpeded career growth can provoke unexpected fallout. The chaos, which Comrade Prachanda created by indulging in a rash decision, has not reflected well on his reputation. If it was an act of an inexperienced person, it could have been excusable. But it is difficult to understand why he did this in spite of his   experience of crisis situation he himself had created by sacking  Rukmangad Katawal from the position of Army Chief of Staff during his previous stint as the prime minister of Nepal. Earlier,  president Ram Baran Yadav had intervened to revoke  his appointment and rehabilitated  Katawal  forcing Comrade Prachanda to  resign from his post.

Appointment of Chand as the chief of the Nepal Police may have been a compulsion of the Prime Minister in view of the unequal partnership which his party has struck with Nepali Congress. But a person of Comrade Prachanda’s stature should have been able to assess the pros and cons of such a decision. This action of the incumbent Prime Minister has introduced a new twist in the political scenario raising more questions on his ability to analyse situations and take decisions without being influenced by irrational and even harmful opinions of the coalition partners.

 Now the ruling coalition has been left scrambling to face the chain of consequences set off by its wrong decision.  In an attempt to plug the gaping holes left here and there in its ill-designed plan of action, it has already committed another blunder by amending regulation of the police force to pave the  way for appointing someone of its choice as the officiating IGP. The turn of events brought about by the appointment of Chand has put the stars of  Dr. Dinesh Chandra Pokhrel, a medical professional,  in ascendance.  But it might serve as a precedence of transforming police institution from a tool of maintaining law and order into a feeble institution at the beck and call of  leaders out to destroy democratic institutions.

The coalition government has been making controversial decisions one after another, deepening political crisis and worsening intra-party collaboration.  The new situation of conflict has emerged in the midst of prolonged stalemate with regard to the amendment of the constitution. Implementation of the constitution has been stalled by awarding its amendment a misplaced priority and by procrastinating in declaring the date for the elections. Its strenuous attempt to stymie democratic process has put external powers  in humour at the cost of hostility with the vast majority of the people who want to move ahead to election leaving behind all the baggage of sectarian politics.

Unblemished records

In the highly politicised social milieu, Nepal’s security agencies are the only institutions that have maintained high professional ethics and have unblemished record of professionalism. By trying to interfere with their autonomy and professional norms the government has tried to make the system of justice stand on its head.  It can be expected that the apex judicial body will, with its final verdict, put it back on its legs again.





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