Nepal now has its 5th Executive Head of State since the 2006 Comprehensive Peace Accords. Sworn in as the Chairman of the Interim Electoral Council of Ministers, Khil Raj Regmi also happens to be the Chief Justice of the Supreme Court. In a normal democratic system we do not see this kind of peculiar arrangement, since having one person oversee two branches of government may lead to an imbalance in the system, or worse, some form of autocratic rule. This also limits the normal checks and balances seen in healthy democratic systems. However, this arrangement, as proposed by the Maoists, seems to have been the only way out for Nepal in its current political crisis; Nepali Congress, UML and other democratic parties, who had previously resisted the proposal, finally agreed to this peculiar arrangement as the primary means to pave a path for future Constituent Assembly elections.
After the Supreme Court put, for the fourth and final time, an end to CA extensions, were politicians simply going to ignore the Supreme Court and create another crisis on top of a crisis? No, but more importantly, the Supreme Court stood firm on its decision, and thus the CA was unable to apply for a fifth extension. This, in the Western legal tradition, is called a “hammer provision”. It is usually seen by the parties as an arbitrary point in time once reached, a provision comes into play, much like a hammer coming down on a gavel, thus settling the matter.
TAKOCONSULT.RU
Hammer provisions serve to provide an incentive for the parties to try as hard as they can to reach a consensus (even one that is built on mutual gains for everyone) up until the last minute. In Nepal’s case, what we witnessed is nothing more than a series of failed “do-overs” or repeated attempts that involved no new negotiating strategies to help the parties break impasse and complete an agreement. Up until that time, the message from the court was simple: There are no serious consequences to real failure. So why should the parties take the process or the situation seriously? Why would parties change when there is no incentive?
Worse yet, once the Supreme Court indicated that this was to be the last attempt to reach an agreement, it too failed to dictate a provision that would accrue in the event of failure. So, after the time elapsed, which is when the hammer would “fall”, there were no provisions to impose on the parties. The court in essence provided no guidance and thus left the end result of the process completely unanswered. This scenario reinforces the notion that political inaction should lead to swift, certain and severe consequences. Civil society should expect and demand results from its political leaders. They must work, even to the point of uncomfortable compromise, to reach agreements on core issues. If they fail to do so, then as political leaders, they should suffer the consequences.
The problem in Nepal is further compounded by the peculiar balance of power arrangement, with Regmi as the head of both the executive and the judiciary, as it lacks a proper means of checks and balances. This situation confuses matters and severely risks the ability of the branches of government to check one another. If anything, a balancing mechanism needs to be negotiated before any major decision is carried out. And since the special arrangements were made as a last resort for CA elections, the political parties need to find a consensus agreement before the elections so that the constitution may be drafted, ironically, on-time. There is no reason, excuse, rationale or justification not to try to reach an agreement before the elections.
We recently witnessed repeated attempts without any new strategies to help the parties break impasse.
Those individuals and parties that maintain an entrenched attitude need to be critically questioned or be seen as having less than transparent motives to continue this slow moving constitutional crisis. In fact, we strongly believe that the major issues must be addressed quickly while the political momentum and any sense of goodwill exist to allow compromise. Timing is everything, just like a hot piece of metal is easy to hammer right out of the forge, the longer the politicians wait—either because of determined resistance or sheer inability to act in a crisis—the more the metal will cool, and the forging process will not produce any quality results. The sound of failure will ring quite clearly several months from now when they begin to pound on cold unmovable steel.
Only when Nepal acts decisively, bravely and with determination may it finally get off this unproductive political merry-go-round. This can be accomplished in part by forcing a “new status quo peace agreement hammer provision” that has both positive and negative consequences wherein individuals and parties will want to support the rewards and jointly avoid the costly negative consequences.
Polkinghorn is Executive Director of Center for Conflict Resolution at Salisbury University, the US
Rana is a PhD student at Kennesaw State University, USA
Related story
Mona Lisa copy to go under the hammer in Paris auction
