A recent article published in Republica documented six instances in the last six months, where the Supreme Court had stalled a policy directive of the government. Included in these was one concerning Madhesis. The court stalled the policy directives for recruiting 3,000 Madhesis in the army. The author argued that it was perhaps due to the incompetence of the lawmakers, who openly flout the law, that whatever the government decides is struck down. But this is just one of the possibilities. There are others as well.
Possibility 1: Politicians and judiciary came up with a deal: that is, the government and the judiciary are in contact beforehand, and are of the understanding that the government shall pass, and the court shall stall. This will kill two birds with one shot. It will satisfy the Madhesi lobby, and at the same time avoid the real inclusion of Madhesis.
Possibility 2: The government does not try to influence the court. But, they expect beforehand that the courts are going to stall it, based on past experience. They go ahead with a policy to recruit Madhesis, without doing proper work in the parliament. Again, the motive is to avoid or at least delay recruitment of the Madhesi in the army. The idea is to entice the Madhesis but keep them hanging.
Possibility 3: The government genuinely wants to recruit the Madhesis in the army, but the opposition (e.g UML) doesn’t. Important UML leaders influence the judge to stall the process. The judge could possibly be influenced, say, if he is guaranteed handsome rewards post retirement. For example, be appointed as an ambassador for toeing the line of an important politician. Nepal’s law does not bar Supreme Court judges from taking up other jobs upon retirement.
Possibility 4: The Supreme Court’s judges are subconsciously affected by their own bias. The judges are appointees of either the royal government, or NC and UML (conservatives in disguise). They all represent upper-caste men of hilly origin, of an older generation. As with most powerful men who made a career in the last two decades, they wear their hill lenses when they view Madhesi issues. They just do not like the idea of Madhesis serving in the national army.
Which of these possibilities played a role, or whether all of them did, we will never know. But what we know is the following: (i) that our courts are far from independent, and (ii) it has a culture that is not conducive for a Madhesi’s progress.
What’s more, the way decisions are made in Nepal’s Supreme Court magnifies the impact of biases and susceptibility to political meddling. Compare, for example, the Nepali Supreme Court, and the American Supreme Court. In Nepal’s Supreme Court, one judge decides on the case. In the US there are nine judges who hear a case, each of them vote, and the majority wins. By design, the American procedure is less prone to error. It is hard to influence five, rather than just one. And, it is unlikely that the inclination of each of them will be in one direction. In fact, if they come from diverse backgrounds, they are likely to be differently inclined, with competing biases cancelling themselves out.
What is important to recognize is that interpreting the law is not a decision of choosing between black and white. It is in the grey areas that judges are forced to make a call. Many of the far-reaching decisions of the US Supreme Court have been passed with a 5-4 votes. That is, five of the most qualified legal minds in the country said it was white, while the other four said it was black. Currently, the Obama administration’s new health-care law is being debated in the Supreme Court. Regardless of whether it gets struck down or is passed, a 5-4 decision seems very likely.
What is unfortunate about the Nepal’s Supreme Court is that only one judge decides; he is invariably an upper-caste Nepali-speaking man. So when it comes to making a decision on a Madhesis issue, he just doesn’t get it. His bias clouds his judgment and what he decides is invariably against what makes sense to a Madhesi. This issue should not be taken lightly, because this can work against the Madhesis for generations.
It is hard to predict when the fault lines in our Supreme Court will show up again. But don’t be surprised if politicians decide to have federalism accordingly to identity, and the Supreme Court decides that it’s unconstitutional. We will have to guess again whether it was political meddling, inherent bias, or both.
The writer is an Assistant Professor of Economics and Finance at Texas A&M International University in Texas
680anand@gmail.com
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