Constitutional Expert Warns Against 'Arbitrary' Governance and Erosion of Rule of Law

Although the current government is riding on the arithmetic strength of a two-thirds majority and a wave of populism, there is a serious danger that 'arbitrariness' may prevail over the rule of law in its working style.

Constitutional expert Dr. Bipin Adhikari has cautioned the government, stating that the tendency to bypass established legal processes in the name of result-oriented work, mocking the separation of powers by mobilizing lawmakers in ministries, and initiating investigations based solely on 'public pressure' without sufficient evidence could erode the very foundation of democracy.

In a conversation with News Agency Nepal, Dr. Adhikari indicated that arithmetic alone does not provide governing legitimacy. He warned that if controlled power and constitutional decorum are not maintained, this government risks repeating past mistakes and heading toward an 'elected dictatorship.' Warning that compromising on procedural justice in a democracy is akin to walking the 'Hitler' path, Dr. Adhikari has seriously urged the leadership to 'slow down' and remain within constitutional limits. The following is an edited excerpt of the conversation News Agency Nepal had with constitutional expert Dr. Bipin Adhikari:

• The government currently has a near two-thirds majority in Parliament, and it is heard that homework is being done to amend the constitution based on this strength. In your view, is the main priority now to change the articles of the constitution or to be honest in its full implementation?

Look, there is no situation where the constitution needs to be 'changed' right now; it is only a matter of 'amendment.' Many parties, including the RSP, have made this a main agenda and have received a mandate based on this. But before bringing an amendment proposal, a serious question must be asked: 'Where has the constitution been implemented and where has it not?' Where it was not implemented, is the problem due to a lack of our laws or our political conduct and culture? It is necessary to understand this.

I think if this government is formed for five years, at least two years should be spent on in-depth study. The major parties should facilitate the 5-6 points of amendment that the RSP has raised by taking them as an 'issue paper.' The leadership should not only look at the 'merit' but must also be able to take a 'calculated risk' regarding the political risks and the impact it may have on society. Understanding the spirit of the constitution and putting it into practice is the first priority today rather than changing it.

• The debate on a directly elected executive has surfaced again; some talk about a presidential system, others about a directly elected prime minister. Which path would be right for a country like Nepal?

This debate is not new. There was a long discussion on this during the Constituent Assembly. We have adopted a parliamentary system. Many talk about a presidential system, where the president runs an 'expert government.' But there is a big risk to this; if the 'wrong person' is elected, it is very difficult to keep them in check. For example, look at the context of Donald Trump in America—he has absolute executive power, and he can remove his ministers (secretaries) at any time. If he wants, he can also form a very good team of experts, but if he starts saying 'I know everything,' the system itself is at risk.

If we talk about the French model, there is a division of power between the president and the prime minister. The president looks after the army, foreign policy, and serious national issues, while the prime minister handles daily administration, which I call the 'politics of salt, oil, and firewood.' But for this, a political culture that does not engage in 'mine and yours' is needed. In a country like Nepal with many castes, religions, and geographies, governing legitimacy is provided not only by elections but also by 'inclusiveness.' Last time there was a prime minister from the hills, next time there might be one from the Madhes; this creates a sense of ownership among the people. Therefore, a 'garland' that includes many can be woven in a parliamentary system.

• Recently, the government has appeared very aggressive in high-profile corruption cases, but you have hinted at errors in the investigation process. Has 'public pressure' dominated investigation over the rule of law?

In a democracy, it is not enough for the results to be good; the process must also be just. There is a wrong tendency in our police administration: 'arrest first and look for evidence later.' I call this the 'state of having no evidence in the police's pocket.' In 99 percent of cases, the police go to court with a 'theory' at the beginning and say, 'If we could arrest them, evidence collection would be easier.' This is a very dangerous thing.

For example, take the Gauri Bahadur Karki report. Before arresting anyone based on any report or rumor, there must be sufficient investigation. Hijacking a plane, committing robbery, and stealing vegetables are all theft, but these are separate offenses. One should not put everyone in the same basket and arrest them 'aggressively.' If they are proven innocent in court, who will compensate for the time spent in jail and the psychological pain suffered by their family? There is no provision for compensation in our law. The court is a place to do justice, not a place to take risks. Therefore, the judge should also demand evidence at the beginning and tell the police: 'Bring the evidence, then only talk about arresting.'

• Actions like taking lawmakers to ministries to assist are happening; how do you view this?

This is gross ignorance of the parliamentary system. I clarify the relationship between Parliament and the government with an interesting example: 'It is like a belt and a buckle.' The two ends of the belt are separate, but a buckle connects them. Parliament gives legitimacy and budget to the government, but the responsibility to work lies only with the government. The job of Parliament is to evaluate the work done by the government and seek accountability.

If a lawmaker starts participating in the work of the ministry themselves, how will they question the government? They cannot criticize work they were involved in. Instead of going to the ministry, the work of calling the secretary to Parliament, asking questions, and seeking accounts should be done. This is against the principle of 'separation of powers,' and such errors must be corrected immediately.

• There is talk of giving government advertisements only to government media; how will this affect private media and independent journalism?

Media is the lifeblood of democracy. If there is no media, there is no democracy. Even if the media is independent and autonomous, the benefits are enjoyed by ordinary people like us. If the government starts imposing a syndicate on advertisements, private media will wither. In a poor country like ours, when the private sector is not strong, the media has to depend on advertisements. The government should stop corruption in advertising, but in its name, it should not control or weaken the media. It is because of the media that our society has become democratic today, so the government should bring a plan on how to make the media 'sustainable.'

• This government was formed on the foundation of 'Gen-Z' protests and amidst high public expectations. You tweeted 'slow down' immediately after the swearing-in; what was the implication of this?

I am optimistic about this government. There are three reasons for this: first, it has new faces who have been successful in their fields. Second, it is a young leadership that carries a commitment. And third, their vested interests are low. They did not win the election with corruption money, so they have moral capital.

But my 'slow down' means that instead of regretting after making decisions in a hurry, proceed by respecting the rule of law. Hitler and Lenin also won elections, but later they became arbitrary. In a democracy, there should be 'calculated power.' Give more time to Parliament. The Prime Minister should stand in Parliament and face the questions of the lawmakers; it is not enough to just draw a salary. Never abandon the rule of law and the due process of law. In a democracy, no matter how good the result is, if the process is wrong, it will not be sustainable.