So, should he or not? CK Lal says he shouldn’t in “The fallacy of supremacy.” His arguments are terrible. One in particular stands out. He concludes his piece with the following statement:

“It’s good to have experts on tap, but a priesthood of judges at the top of the constitutional hierarchy is a fundamentally flawed idea in a democratic republic of multiple minorities.”

He’s basically saying that it’s deeply undemocratic to let a panel of unelected judges decide policy in a country of “multiple minorities.” He also blames “judicial supremacy” for the unravelling of the 1990 constitution. The argument seems intuitive since a club of handpicked, largely high-caste, judges won’t always be sympathetic to minority concerns. But a court that’s liberal enough to allow gay marriage is probably more sympathetic to minorities that Lal thinks.

However, whether this is true or not, Lal misses a more obvious point. The alternative to “judicial supremacy” is majority rule, and without a strong court that can restrain the majority and protect minority rights, the majority can do whatever it very well wants to the minority. If, after the Hindi oath row, you think Nepal is unsafe for minorities, check out China, where the government freely oppresses muslim minorities (as the violence last month attests) and the court’s restraining arm is nowhere in sight.

Why is a strong court good for minorities? If laws and ordinances are passed by majority vote, then minorities have no say in them, which means they can’t defend themselves against malicious policies, like a policy to systematically disenfranchise some small ethnic community to serve business interests. This is where the court comes in, at least in a functioning democracy. The court can step in to defend the minorities and invalidate the policy by gesturing to a constitution that, as in our case, protects equal rights for all.

Think of this way: if politics is a boxing match, the court is the referee, which can restrain the big guys from trampling gratuitously on the little guys. Ever wonder what would happen if a five-year-old strayed into a street fight between 300 pound boxers? Lets just say his mother wouldn’t be too pleased.

Prashant Jha weighs in on the debate in favor of the VP in “Swearing in Hindi” from the latest issue of Nepali Times.  One argument in particular stands out. Jha’s basic argument is that the vice president should ignore the SC because nobody follows the law anyway:

“In a country with rampant impunity…the law is remembered when it comes to the Madhes.” What he’s basically saying is that the laws are being selectively deployed to hurt Madhesi people. Since that’s unfair, the SC verdict is illegitimate and the VP needn’t retake his oath.

There are at least two problems with this argument. The most glaring one is that it overreaches itself. Not only does it encourage the VP to ignore the SC, it encourages everyone to break the law willfully because nobody follows it anyway. In other words, since it’s unfair to hold Ram to the law and let Shyam go scot-free, Ram (and everyone else) needn’t follow the law. The argument invites, indeed exults in, a Lord of the Flies like anarchy. A full objection to this point will require a treatise on why lawfulness is valuable. Since I’m not up to that, and this blog-format doesn’t permit it, I’ll simply restate what should be obvious: lawfulness good, anarchy bad.

Secondly, the course of action Jha recommends probably hurts Madheis more than it helps. Jha says, “Madhesis will accept the duties that come with citizenship only when they are allowed the corresponding benefits of citizenship.” The obvious response is, unless people respect the law, there won’t be a state that can afford to dole out the “benefits of citizenship. And (more damning for to Jha’s argument), since there’s no incentive to follow the law when nobody else does, nobody will until somebody braves the consequences and takes the lead. So, what Jha should really be asking isn’t, “why should we follow the law?” but “why aren’t we?”

Additionally, if you don’t shore up the SC’s (and thus the state’s) flailing credibility now, you won’t have an opportunity to remake it when its teetering. As we know, our politicians have enough trouble agreeing to inconsequential, but politically lucrative, points. How could they possibly rebuild a new institution from scratch?

This argument is hard to stomach even though it’s right since it seems massively unfair. Accepting the law in this case is like agreeing to shackles in a 100 meter dash against nimble and free-legged opponents. But the gut response misses the distinction between being unfair and being wrong, since sometimes the right thing to do is unfair. This is precisely why charity is laudable. Giving up your meal to your neighbor is strictly speaking unfair, since it privileges one person at another’s expense, but it is nonetheless worth doing. And it is this willingness to tolerate unfairness for the greater good that makes statesmen out of politicians, and separates the Nehrus and BPs from the Mayawatis and Deubas. What shocks me about the Madhesi response to the crisis is that it doesn’t register this point. Upendra Yadav could win enormous credibility, which is so scarce these days, if he simply said, “the ruling is unfair, and we will contest in the future, but the country’s welfare demands that we take it” and would promptly win win national, no, regional or even international acclaim. Naysayers will point out the President’s acquiescence to the ruling to show that it wouldn’t bolster his credibility but sap it since it would make him look weak. But the reason the president looks weak is that in accepting the ruling without at least questioning its wisdom, he looks like a pahadi puppet.

Jha is right in one sense, however. If the state really is conspiring to oppress the madhesis and is plotting a new Nepal in which Madhesi culture is not represented – in short, if the regime is truly racist – then, by all means, disobey it, even topple it if you have to, because it doesn’t deserve to exist. But, this is clearly not the case. The state’s certainly fallen short of its liberal rhetoric, and it’s criminally negligent at times of its people, but it’s certainly not Nazi-like. It needs work, but openly defying it doesn’t help.

“Political parties must show the will to take a joint stand at least when it comes to foreign policy. A divide country will only undermine its own interests.”

In other words: bicker all you want about ordinary, run-of-the-mill issues, but our foreign policy’s too sacred to contest.

The first argument is absurd because it obliges politicians to celebrate any foreign policy gain, no matter how minimal, even when it’s less than the country could otherwise have achieved, or has inflicted longterm harm on it. If the policy won Nepal short term gain at longterm cost, by locking it into an unbalanced relationship with India, then it should be roundly criticized. The same applies if the policy achieved less than it could, for example, by securing Nepal 50 MW of energy instead of 75. Obviously, these gains help Nepalis, but that alone doesn’t invalidate criticism of the policies that won them.

The second argument-that foreign policy differences in particular are especially harmful to the country so everyone should back it whatever it is-is equally ridiculous for three reasons. First, foreign policy deeply influence domestic policy, so any differences about the latter will extend to the former. If, for instance, the government decided to make hydropower the mainstay of the national economy, then this must be reflected in its foreign policy by, say, refusing to acquiese to unfavorable water sharing treaties. So, it would totally absurd to condone disputes about domestic policy and then quickly stifle related foreign policy disputes. Secondly, if the parties compromised their domestic policy stands to accomodate foreign policies they disagreed with, then that policy would be so much easier to manipulate. If India pushed some unfavorable treaty on Nepal, and strongarmed a few parties to accept it, and every other party quickly fell in line out of the concerns this editorial raises, then India would easily have its way at our expense.

Foreign policy disagreements are good for the same reason any disagreement is good: they force people to reconsider shoddy arguments. If we stifle these disagreements, our foreign policy will go down the drain.

Most importantly, Nepal’s in the midst of a transition, which will require changes to its domestic as much as its foreign policy. So what matters now isn’t the immediate gains we win, but their longterm consequences. Indian aid will help us immensely today, to be sure, but if they unfairly leverage India’s position in the future, then by all means, dispute it, dispute it, dispute it.

In a sense, though, the editorial is right. If the parties are caviling and raising objects on frivolous, obviously political grounds, then they should stop. But it’s clear there’s far more on the table than politics. The Maoists, rash and reckless as they are, have very clearly ideological commitments. The fault likes with Makunay for not taking these commitments seriously.

All this comes while the prime minister’s diplomatic trip to India winds down. For the most part, the trip has been a reasonable success. Alert to the instability in Nepal and wary of humiliating a government that has barely weathered opposition by a much feared Maoist party, India was surprisingly generous. It signed the Trade and Transit Treaty the Nepali prime minister proposed after agreeing to drop a contentious clause that would favor India at Nepal’s expense. They also signed a huge dam deal that could reduce Nepal’s electricity shortfall and offered a whopping 32 billion rupees in aid to develop electricity lines and roads in the Tarai.

The Maoists had warned the prime minister against signing any significant deals that could have a lasting impact on Nepal-India relations in the future. On this point, the Maoists are probably right. Although the constitution will recognise any deal the government signs, it would be deeply irresponsible to lock Nepal into agreements that will predetermine Nepal-India relations before the assembly tasked to transform Nepal has a chance to shape it. In response, they’ve stepped up their agitations, now threating to launch a nationwide protests unless 4 key demands are met, including the restoration of ‘civilian supremacy’. The rhetoric is also more strident with Maoist chairman Prachanda gleefully predicting the government’s fall.

But things won’t need to go that far since the balance of power in parliament is beginning to tilt against the ruling UML party. The NC’s support for the government looks uncertain after UML gave foreign minister Sujata Koirala, a blabbering NC halfwit and Girija favorite, the cold shoulder by refusing to appoint her deputy prime minister. In consequence the NC has warmed to the Maoists with whom, if Prachanda is to be believed, they have already met to form a new, self-styled ‘national unity government’.

The plot may be helped by infighting within UML. Senior UML leader KP Oli has publicly criticized his party saying personality cults had elbowed out a coherent party ideology. But Oli’s made potshots like this in the past and is generally a bitter, resentful person, so these latest comments may be insignificant.

Will these changes be good or bad for Nepal? A mix of both. Rifts within the NC, and possibly the UML, will only invite more instability in the future. NC rifts in the past have festered and divided the party, which, unlike the Maoists, d0esn’t have a substantive uniting political ideology. But it may help the CA ford the PLA-Army impasse since the NC has been the staunchest critic of PLA integration. After all, it was effectively at the NC’s behest that the president reinstated the Army Chief and sparked the present crisis.

The Maoist order was hardly whimsical. In an interview with myrepublica.com, Baburam Bhattarai says the party had long been plotting to dismiss the chief because he was anti-democratic, having “grown up under the patronage of the palace”. Bhattarai adds, “he gave a draft of the constitution to the constituent assembly committee against the spirit of the democratic change.” He also recruited 3,000 soldiers into the Nepal Army when he had been ordered not to, not least because it violated it the Comprehensive Peace Accord the Maoists signed with the government months ago. But it was his allegedly “feudal” views that rankled the Maoists most of all, not any one thing he did. And what’s worse, he was powerful enough to thwart Maoist reforms. So, the Maoists hoped that by dismissing Katawal they would clear the way to a Maoist utopia.

But was the dismissal illegal? Yes, for the simple reason that the Maoists’ partners in government had resisted it. In a westminster style democracy, every government order must  have the full backing of the ruling parties. Since that hadn’t occured here, the order was void.

And it’s clear from Bhattarai’s comments that the Maoists are fully aware of this. Two comments in particular stand out. When asked why the Maoists bypassed the Supreme Court, where the Katawal case was still pending, in taking its decision, Bhattarai replies: “You should see both the form and the content…The main thing is that you have to go to the essence. If you go to the essence, Rookmangud Katawal never digested the political change…” In other words, Katawal is a bad man and if we want to become a democracy we have to get rid of him no matter what the laws say.

That impression is made more vivid when Bhattarai says, “this is a political issue, not a legal one, so it should be settled politically.” It should be abundantly clear why this is ridiculous. You can’t accuse the president of acting unconstitutionally and then deny that the issue is a legal one to be settled by the SC. The fact that he wanted to keep the SC out of it suggests his uncertainty of his party’s case.

Yet, the Maoists’ concerns are genuine. The Army Chief had flouted civilian authority. There can’t be any doubt about that. First, he continued recruiting socldiers into the Nepal Army, in contravention of the CPA, after the government ordered him to stop. Second, he bypassed the defense ministry, a civilian authority, in making high military appointments. That this didn’t suffice to disqualify him from his post is a failing of the constitution.

The Maoists panicked after their order was reversed. A stunned Prachanda resigned. Emboldened Maoist radicals decried multi-party democracy as a give-in. Maoist moderates lost credibility and the party had to revert to a “multi-post” system of leadership to accomodate more radical voices. Those same voices established the “code of conduct” to rein in the leadership’s extravagace. As a result, Prachanda looks greyer and thinner. Yet, amidst all this, the Maoists continue to deny that there are serious rifts within the party.

For example, in today’s Himalayan Times, Hisila Yami tries to save face by glossing the party’s recent drift as the result of the same inexorable historical forces that the party had long championed and knows best :”Once again, it has achieved a synthesis through the process of thesis and antithesis without splitting the party, much to the disappointment of internal and external forces which wanted to see the party torn asunder.” In other words, these rifts are a natural part of the party’s development, so we’re still in control.  But, she’s really using high theoretical language to deliberately obscure the fact that the party is tottering.

To call complete a constitution that is silent on the army is more than a stretch: it’s a fiction. We’re striving to become a genuine democracy. It’s self-evident that the military plays a hugely different role in a democracy than an autocracy. A big chunk of the constitution must be set aside define what this role is. Should we, like the Swiss, disband the military entirely and put a militia in its place? How should we guarantee civil oversight of the army? Should we make army training mandatory for all 18 year olds? Would that be immoral, or more to the point, unconstitutional? These aren’t trifling questions that we can wave away. If we’re not clear about them, we risk going the way of Pakistan and Bangladesh, where tenuous interpretations of the constitutional seem to license military takeovers. Fortunately, Nepal hasn’t suffered a military coup yet (although the royal coup could be called one) and we certainly don’t want to.

The reason we can’t wait until after we submit the constitution to answer these questions is they likely will suggest revisions to the broader document. For example, if we decide that all 18-year olds must undergo military training, then we’ll have to reconsider laws that forbid restrictions to rights of free movement, employment, and so forth. Otherwise, three-years down the line, the Supreme Court may have every justification to discontinue the policy. We could, of course, amend the constitution, but that will require a larger legislative majority than it would to make the laws in the first place.

And this is why Prachanda’s proposal is idiotic: since it’s harder to amend the constitution than write it, the Maoists will have a harder time pushing their military agenda if they wait until after the constitution has been submitted to do so. Madhav Kumar Nepal and Girijababu are canny politicians so they won’t have trouble mustering the numbers to reject these amendments.

Prachanda’s proposal, then, is naive politically, since it hurts the chances that his party will realize its ambitions, and historically, since it is blind to the sceptre of an army takeover that Pakistan and Bangladesh’s examples undeniably raise. In all seriousness, when was the last you heard of an army totally ungoverned by the state’s constitution?

Against this tide of denunciations, I think the SC ruling was correct for the simple reason that rules are rules. The SC announced that what Jha did was illegal by “the letter of the law.” If this is the case, the judges merely reported the law as it is. It is binding because the parties had agreed to them, even if unwittingly, when they were first drafted. The ruling is binding, then, according to the democratic standards the parties themselves uphold. The law is legitimate because legitimately drafted. It’s as simple as that. To those who argue that the SC should be given broad discretionary powers so it can amend illiberal laws, I respond: this would just prolong legal and political tussles that have bogged us down by introducing another party into the fray.

Sometimes democratically elected laws can be illegitimate. People forget that the Nazis were elected into office and their racist laws were widely approved in Germany. Such laws are illegitimate because they are patently immoral. In other words, even democratic governments can’t make immoral laws. And if they do, their subjects are right to ignore them.

But, the law barring oath-taking in Hindi isn’t Nazi-like so they still obligate us. The prima-facie obligation we owe to democratically elected laws is decisive here.

Even if there was no such law, I still think Jha was wrong to deliver his oath in Hindi. The oath-of-office represents two things. An official’s allegiance to the state and its people. The state, however, is a Nepali-speaking one just as the American state, despite its diverse citizenry, is an English speaking one. It has been since its birth. This is a historical fact that can’t be overturned without formal, popular support. This means that the state will remain Nepali-speaking until the Constituent Assembly, which will rewrite that state’s charter and so its identity, decides otherwise.

When it comes time for the CA to make the decision, it should insist that the oath be taken in Nepali because it is a pledge to the public, most of which is Nepali-speaking. It would make a poor promise if most don’t understand it. The point might seem frivolous because it isn’t a real pledge in that it holds no real legal significance. In other words, it’s just a symbol. This is true but nonetheless a good symbol is easily understood.

Anyway, If Jha thinks that it leaves out non-Nepali speaking groups (most of whom doubtless understand Nepali), then he must give it in each of those languages, not just Hindi. He shouldn’t forget that he’s a public official beholden to all Nepalis, not just Madhesis.

To start, the appeal would be totally vain for two reasons. First, India and China are both “paranoid”, as the editorial says, about the other’s influence in Nepal. It would seem that unless Nepal credibly pledged to be neutral, neither country would stop interfering. But neither country would believe the pledge. Nepal’s played the two countries off one another for too long already. It would take only a shadow of a suspicion that Nepal’s leaning the other way for either country to continue meddling again.

Second, as the editorial rightly points out, the two countries have other reasons for interfering in Nepal. India’s concerned about the links the Nepali Maoists have to Indian Naxalities and the threat political instability in Nepal poses to adjoining states in India. China’s scared that Nepal might support the Tibetan cause. So, neither country would accept pledges of neutrality, even if credible, since they both have very strong interests in a pro-India or pro-china Nepal.

So, we’re in a pickle and there’s no way out, certainly not by making vain appeals for non-interference. I think what we should do, instead, is to remind both countries that political instability in Nepal is bad for them, so that they wield their influence in Nepal more responsibly.

Besides, interference isn’t such a bad thing. The editorial argues that it’s increased political instability. This is probably not true. History’s shown that our politicians will use every excuse, every tool at their disposal to cause instability if it favours them. The editorial agrees: “But forget about India interfering in Nepal, for the last 200 years we have gone south to ask them to interfere with us.” So the problem isn’t either India or China, it’s us. In fact, Indian and Chinese “interference” has helped us in the past. They’ve helped us with countless development works. The National Congress is basically an offshoot of India’s congress party. If it weren’t for our selfish politicians, we would likely one, or at most two, predominant parties today. UML, even democracy and Maoism, found their way to Nepal through India. So at least if you’re a democrat you should cheer Indian influence.

Of course, India’s hurt us as well but the way to defend ourselves isn’t to shut India out completely, which couldn’t happen anyway, but to remind them of our shared interests.

“But the concept of civilian supremacy is grossly violated when paramilitary youth groups or sister organisations of political parties subject innocent civilians to violence, intimidation, and extortion with impunity.”

Civilian supremacy refers to the supremacy of public elected officials over the military. This means that the military is beholden to a civilian authority, the president or parliament, and can’t make public laws, like tax laws, tort laws and so forth. Gautam seems to argue that political leaders who run violent youth groups are really quasi-generals running quasi-military (or in his words, “paramilitary) outfits. If they were to join the government without disavowing their ties to these paramilitary groups, then they would violate civilian supremacy. It would be tantamount to a general governing without renouncing his military title. In other words, it would like military rule.

The argument makes sense, but he follows it with a bizarre statement:

“Not allowing ordinary people to live in peace, not allowing children to go to school, not allowing innocent passengers to travel on highways, not allowing patients to go to hospitals, not allowing labourers to earn a living, not allowing shop-keepers to open their shops, all these are a violationof civilian supremacy.”

He seems to argue here that any curtailment of civil rights is a violation of civil supremacy. If a group unaffiliated with a political party called a banda then, Gautam seems to say, it violates civil supremacy. Or if I (and I don’t have political ties) stole candy from a baby then I too would have violated  civil supremacy. But this is totally ridiculous. He’s confused civil supremacy with the more general constitutional principle, call it the principle of the sovereignty of civil rights, that commands respect for human rights. Civil supremacy forbids only military rule, which violates the right to representation, but is indifferent to every other right violation.  An unaffiliated group that calls a banda may well have done something illegal, but certainly not because it violated civil supremacy.