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Knots and bolts

Bipin Adhikari
The Kathmandu Post, July 02, 2010
Source: The Kathmandu Post

Political difficulties surrounding the resignation of Prime Minister Madhav Kumar Nepal, despite the fact that he still holds a clear majority in the Constituent Assembly (CA), are more than obvious. What is not obvious is what is supposed to come next.

In a way, the prime minister had been under constant pressure from UCPN (Maoist) to resign as a condition for their support to amend the constitution for extension of the deadline to write a new constitution by a year. With his resignation, the prime minister has fulfilled, although belatedly, the understanding to which he was not a negotiating partner. He has become a 'caretaker' prime minister, and the Maoists, as a largest party in the parliament, now have the opportunity to tender their claim for the next government.

It is now the turn of the Maoist party, which has the crucial votes for passing any constitutional provision by the required two-third majority, to reciprocate the goodwill by starting to implement the remaining two points of the three-point understanding signed between three major parties on the midnight of May 28. The three-point understanding comprised of a provision for extending the term of the Constituent Assembly by a year, implementation of all past agreements (which envisage a democratic constitution for the country) and the resignation of the prime minister within 'days' to pave the way for a national government.

At the moment, there is very little distance between the Maoists and the vacant post of prime minister, if they are flexible to reach consensus with other parties on the integration/rehabilitation of their combatants, and tone down their aggressive positions on many crucial constitutional issues. It is not that Maoists do not understand the implications of what they have proposed; the problem is they want exactly what are being implied. These positions, if conceded under pressure, can detrimentally affect the quality of democracy under the new constitution due to their authoritarian overtones.

CA Chairman Subash Nembang has already compiled 18 contentious constitutional issues, and asked the parties to find compromise solutions on each of them, in order to help the constitution drafting process resume. These issues overlap with, and the real number of contentious issues is no more than 12. Some of these issues are real, but result from a blatant disregard for the basics of constitutionalism.

In addition to that, however, the most pressing issue is the lack of agreement on integration/rehabilitation of the combatants—on which Maoist preconditions are not aboveboard. There are multiple options on the table, but the breakthrough will come only after the Maoists give up their desire to retain their combatants until their grip on power is fully achieved. If this is not true, it is probably the time for the Maoists to show where they stand on these issues—and how they plan to go ahead if they are to form the next government.

It is probably not out of place here to point out that the initiative of CA chairperson towards formation of the State Restructuring Commission (SRC)—something that surprises many ethnic groups—may not be a good idea. There are issues for sure—on the number, names and boundaries of federal units. But they must be handled within the Constituent Assembly, without discrediting the groundwork done by the Committee on State Restructuring and Division of State Powers and Committee on Natural Resources, Economic Powers and Allocation of Revenues.

Even if a SRC is created, it would not have a magic formula. It would be the forum of the same politicians, same experts and probably the same biases or prejudices. But its creation will definitely create an environment of distrust between political parties who have different levels of commitment and enthusiasm about federalisation issues. The best way out in the given situation is to devise a small but politically powerful sub-committee within the CA, which would have access to all experts and resources that a SRC might purportedly enjoy, but also build on what has already been done.

Additionally, it is good to revive the high level political mechanism to work within the Assembly. The role of such a mechanism has become all the more important because of lack of towering or statesman-like leaders in the assembly who can get things done. There has not been enough give and take in the matter of principles to create a win-win situation so far. In an environment which lacks coalition culture, such a mechanism, if properly worked out, can help political parties arrive at crucial decisions.

The Constitutional Committee in the CA, the final drafting body, must also be able to lay down certain norms on the length of the new constitution. The details that have come through the thematic committees are simply too long. What is to be included and excluded is the most difficult part of the job. A related issue is tension between shortness and detail. A short and simple constitution is much better. But the shorter the document, the greater the scope for interpretation by the courts. There is no agreed boundary of what is constitutional, and what is not. But the issue must be sorted out in order to save the document from unnecessary challenges—especially due to unnecessary details.

There is no other way out of working with the Maoist if the ongoing transition is to be completed within the next 11 months. Even with Maoists, it is not going to be smooth. There are contradictions within Maoists as well. The only positive thing is that it is still united, and the present leadership, despite all its shortcomings, is still the best available bet for any meaningful change in the country.

Buying time for a favourable balance of power before letting the CA resume its work is dangerous. To put it categorically, as this critic has noted before, any attempt to bring a split in the UCPN (Maoist), supposedly to "rightsise" it in the CA will be the most irresponsible approach to handling the current situation. Its breakup into rival forces is neither in the interest of Nepal, nor its neighbours. lawyers_inc_nepal@yahoo.com


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