Another Eleventh Hour - May 2011

Dr. Bipin Adhikari
(Source: Himal South Asian)

"The extended mandate for Nepal’s Constituent Assembly ends on 28 May".

On 31 March, a team of lawyers from the Nepal Constitution Foundation had a meeting with Pushpa Kamal Dahal, the chairman of the Unified Communist Party of Nepal (Maoist), at his residence. The team discussed with him the work being done by the subcommittee created by the Constitutional Committee of the Constituent Assembly, which he had been heading since it was set up in February. While the Constituent Assembly's second mandate is set to expire in late May, the subcommittee was expected to sort out outstanding issues that have proven contentious. That day, Dahal confirmed that he was committed to the process, and would act to ensure that any decision-making was done in consultation with outside experts as well (who had limited involvement at the sub-committee level).

Towards the end of the meeting, Dahal happened to ask the youngest member of the team, and a fresher from the local law college, whether he had anything he wanted to say. Still working with the team as apprentice, the young man said hesitatingly: 'Thank you, sir. I am enlightened. But tell me, how important do you think a constitution is for your party?' The question was an uncomfortable one, and while the rest of the group fidgeted uncomfortably, Dahal smiled and replied, 'Certainly, young man, a good constitution helps everybody. We all are committed to drafting a constitution – which is not for maintaining business as usual, but for bringing about changes in favour of the common people.'

There is no doubt that a 'good' constitution helps everybody. The seriously unresolved question in Nepal today, however, is what exactly constitutes a 'good' constitution. Does it mean a democratic constitution, with a limited government, independence of judiciary, separation of powers, and checks and balances? Does it mean a system of federalism, which does not build it itself on discriminatory arrangements? Or supports a form of government that helps to establish pluralism and allows Nepal's diversity to flourish?

There is serious disagreement about these vital issues between the revolutionary Maoists and the other central parties, which collectively created a common platform to abolish monarchy and elect the Constituent Assembly to draft a new constitution as part of the peace process. Such agreements notwithstanding, today the aim of restructuring Nepal is being interpreted very differently. The building of a progressive, inclusive and democratic state, to end the existing centralised and unitary structure of government, now seems to be in limbo.

The major political parties have not yet been able to sort out what form of government they want under the new constitution. The Maoists in particular want a mixed system led by a popularly elected president, with a cabinet drawn from almost all parties in the Parliament – with the effect that there is virtually no opposition left to oversee the government. They are still unclear on how they should revise the initial proposal of the Committee on State Restructuring and Division of State Power, which proposed a 14-province Nepal, with at least seven provinces based on ethnicity, 23 autonomous regions, and the concept of agradhikar (meaning the entitlement of the dominant ethnic group in each ethnic province to have the member of their community as the chief executive for at least two terms).

The Nepali Congress has serious reservations on each of these propositions. The CPN (UML), which is the third-largest force in the House and the party of Prime Minister Jhala Nath Khanal, is divided. Finally, most of the smaller parties do not think these ideas are workable or helpful. Beyond state structure, the electoral system to be applied at the national, provincial and sub-provincial levels are still unclear. Inclusion of traditionally deprived and proportional representation remain key concerns. Nobody has resisted it, but a competitive democratic environment is not the main concern for anybody. Most importantly, every major party has its own concept of what entails a'good' constitution.

32 issues
The last of the reports of the 11 thematic committees of the Constituent Assembly were made public more than 14 months ago. Although there has been little done to take these reports to the villages, the intellectual debates on them, including by political activists, have generated substantial dialogues. But even after this, the major parties have yet to revert back to review their positions in light of these public discussions. Instead, they all continue to stand where they stood initially, giving the clear indication that they do not want to compromise.

It is not that there have been no efforts. There have been several, though these were admittedly incomplete and vitiated by jealousy. During the course of 2010, a high-level political taskforce, established outside the Assembly framework, was able to sort out more than 150 differences that had arisen in the course of drafting the document, from the issue of the national flag to that of national languages. However, the most controversial among these issues were left out. Still, this too made sense, given that taskforce members, all from midlevel ranks, cannot decide on such issues with delegated authority. As such, the creation the subcommittee within the Constitutional Committee, chaired by Dahal, was a potentially positive move – Dahal being the only one among his party's leaders who could negotiate and make decisions with full authority. While the taskforce was able to bring the number of contentious issues from over 210 to 75, the Dahal-led subcommittee brought that number down to 37. Of these, only 32 constitute real disagreements.

Such success did not make everyone happy, however. Dahal only hesitantly agreed to continue as coordinator of the subcommittee when its term was renewed in early April, in the face of strenuous pressure from some of his colleagues. Critics say there were at least two reasons why Dahal was thinking of quitting his role on the subcommittee. First, the responsibilities demanded flexibility, something that was increasingly being interpreted by Maoist hardliners as compromising the party's stances. Second, such flexibility would give more opportunity to his competitors in the party to position themselves against him.

Legal experts at the Constituent Assembly Secretariat, and many others assisting the process from outside, agree that Dahal has displayed courage in demonstrating some flexibility at the negotiating table. This has included giving in to several important compromise solutions even if they went against his party's line. For example, Dahal gave in to the demand for judicial independence and constitutional checks and balance, as put forward by the Congress and CPN (UML). Instead of clinging to his party's original stand to keep the judiciary under the control of legislature (in its appointment, transfer, code of conduct and power of interpreting the constitution on issues that related with political importance), Dahal has agreed to switch to a compromise formula of creating a constitutional court outside the legislature, with representation of some political members in its decision-making structure.

Although these were not ideal solutions, they are workable. Similarly, Dahal also agreed on a bicameral legislature at the national level as demanded by the Nepali Congress and CPN (UML). There is no doubt that Dahal is looking ahead in terms of the prospect of power that he would gain in the next national elections, rather than what is in the constitution. In making such compromises, however, Dahal was fast alienating the radical camp in his party, which has continued to argue in favour of a 'revolt' rather than to prioritise the new constitution.

First this, then that
There is one particular issue that remains most vexing. Over the course of March, this writer interacted with around two dozen prominent members of the Constituent Assembly, including former Prime Minister Madhav Kumar Nepal, all of whom call for the constitution-writing to be completed only after the peace process is considered finished. In particular, they continue to call for the longstanding issue of integration of Maoist combatants to be fully addressed before any new constitution is adopted.

The Maoists, however, remain of the exact opposite view. Yet the Maoist leadership also knows that it does not have reasonable arguments in favour of the status quo – keeping the fate of combatants undecided until they firmly fix themselves in power. In a seminar on compromise constitutional solutions, for example, UCPN (Maoist) Secretary C P Gajurel told the audience that the constitution-writing and the resolution of combatant-related issues could go hand in hand, leaving it to the future which would be settled first. Although a rational position when compared to what Maoist leaders have said in the past, this remains unconvincing for the non-Maoist parties in the Constituent Assembly.

Meanwhile, Prime Minister Khanal is still attempting to form a coalition government, despite having assumed the office in early February. Although Khanal's government came to exist only due to the support of the UCPN (Maoist), the largest party in the Parliament, it has faced major challenges as the country struggles to complete its transformation to a peaceful, secular democracy. His election did end a seven-month leadership vacuum, but significant disagreements between the Maoists and the CPN (UML) have erupted. Khanal is not liked by many of his senior colleagues due to the seven-point 'secret deal' he struck with Dahal to become prime minister, which included provisions to share the prime-ministerial berth on a rotational basis and sharing the key ministries (including Home). The Maoists are still demanding the Home Ministry, while most CPN (UML) party stalwarts remain vehemently against giving such a portfolio to a party that has yet to distance itself from its combatants.

The first extension of the Constituent Assembly's mandate is ending on 28 May. At that point, the Assembly will complete its revised three-year tenure to complete the constitution writing. The weeks that remain are now not enough even for a miracle, and the issue of extending the House for another six-month term is being discussed behind the curtains. Any other option has imminent dangers. However, taking this step without first getting an integrated draft of the constitution – which must be a 'good' constitution, acceptable at least to a two-third majority in the House – is fraught with difficulties. Only such an integrated first draft could help to engage the people for a few months more. The Constituent Assembly is losing its political legitimacy very quickly.

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