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There must be a way

The Constituent Assembly clock is ticking, and all possible options must be discussed before disaster strikes.

Bipin Adhikari
The Kathmandu Post, August 16, 2011
Source: The Kathmandu Post

Nepal is again on the brink of a disaster which was in some way (unconstitutionally) averted the last time in the early morning of May 29. The three-month extension of the Constituent Assembly (CA) is expiring soon. The opposition parties had agreed to the extra time under the condition that the government use this period to first settle issues involving management of the Maoist combatants first and bring out the first integrated draft of the new constitution before making plans for the next move.

Moreover, the five-point understanding signed between the supremos of the UCPN (Maoist), the UML and the Nepali Congress for the next three months had two additional points: To implement effectively the various past agreements reached by the government of the day with the Madhesi front, including the one to make the Nepal Army an inclusive institution; and the resignation of the prime minister paving the way for the formation of a national unity government.

Three months later, there has been no progress at all on the issue of the peace process. The Maoists seem to be looking at the whole process of change after the People's Movement II in retrospection. This aroused internal rifts between leaders on the current status of the UCPN (Maoist) and the way forward. The position of Prachanda became weak, although none of his possible alternatives are powerful enough to replace his leadership or to manage him on the street, if Prachanda gives way to others.

The Congress continues to be in the agony of living an existence which has never been as pathetic as it is now. It has lost the battle on both the fronts of maintaining a functioning democracy and protecting nationalism. This explains the inertia in the party rank and file. The prime minister (caretaker) stands on a very shaky platform. He has been fooling his partners all around. His party seems to be taking a very belligerent position on all the issues that should be his priority.

Regarding inclusion of Madhesis in the army, there is little problem as long as the process of recruitment is done according to the prevailing standards. The Madhesi parties, however, expect enlistment to be done en masse — making sure that the army is no longer the same army. This is the Maoist vision regarding integration of their combatants. There is no confusion in their respective positions.

On the issue of the resignation of the prime minister, no sooner had the five-point deal been signed and the constitution amendment bill passed than he backtracked saying, "Let the alternative prime minister be agreed upon first." He eventually resigned, but leaving little time and space to his successor to deal with these Herculean tasks. In sum, the house stands where it stood in the early morning of May 29.

The question is this: What is the way out then? Is it within the capacity of the major political parties to strike a deal on the main controversial issues of peace, constitution and international expectations? According to the interview of CA Chairman Subhash C Nembang published in Kantipur on August 14, there does not seem to be any hope that the CA will produce a constitution.

Some political leaders and elements in every political party have been saying that the present balance of power in the CA cannot help it draft a new constitution and conclude the vitals aspects of the peace process. They have been urging that the CA be dissolved and fresh elections held to get new people and perspectives in the constitution building process. While a very democratic option, this might not be an acceptable way out for the existing leadership in all the parties. Moreover, it will be difficult for the present generation of politicians to vote for this constitutional option as it would be admitting that they are unproductive.

A recent proposal by Nepali Congress legislator Ramesh Lekhak, who is one of the active constitution builders, has attracted the attention of many critics. In his personal opinion piece published in Nagarik, Lekhak has recommended an immediate constitutional amendment vesting executive power in the president until a new constitution is enacted, should the CA fail to deliver what is expected of it by August 31. Such a president (with a redefined role) would form an all-party government based on the strength of each party in the legislature. It would be assisted by a political council in which the chiefs of the political parties in the CA and all the prime ministers who have ruled the country after 1990 would be included.

There should also be a peace process implementation committee comprising 15 members from within and outside the house. This committee will advise the president and his cabinet on the implementation of the peace process and the technical issues involving it. Similarly, a civil society machinery designed to monitor the peace process, which will include foreign experts or institutions, will also be formed.

According to Lekhak, the amendment should also provide for a constitutional drafting commission not exceeding 21 (or 25) people from among the existing CA members. This commission will draft the constitution basing itself on the progress made by the house over the last three years. To be effective, the new constitution drafted by this miniature house will have to be approved by the parliament to be elected under the new constitution drafted by them. The parties represented in the CA will be proportionately represented in the peace process implementation assistance committee and the constitution drafting commission.

Under this scheme, the peace process may be completed within six months, and the drafting of the constitution within one year. In order to allow these arrangements to work, the existing parliament must amend the Interim Constitution and then the statutes that are related with these arrangements. After the amendment to the constitution, the CA will declare itself dissolved. The strongest part of this arrangement is that it builds on the existing house, and leaves behind the machinery that has not worked. It can certainly be put to debate as an option. It will also give some time to Nepal's international partners to think about how to help it in this critical period of its history.

All the available options like that of Lekhak must be discussed now. The window to deliberations on alternatives must be opened. There is no use renewing the term of the house when it is clear that it cannot achieve its core objective. Refusing to discuss a settlement until the disaster occurs is clearly not a trait that will make any political party popular, particularly when the passage of time has made settlement more difficult.

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