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Working in slow motion

Bipin Adhikari
The Kathmandu Post, 1 January, 2009
Source: The Kathmandu Post

"None of the parties in the CA seems to be interested in getting things rolling"

Nepal's Constituent Assembly (CA) is in its eighth month of existence. Even after this long period of inactivity, it appears none of the major political parties in the CA is much interested in speeding up the task of writing the constitution. The question is: why has the euphoria of having a new democratic constitution disappeared like this?

The election of the chairpersons of the 14 committees in the CA that will be writing the constitution is scheduled to take place on Jan. 9. The CA formed these committees in mid-December based on the nominations submitted by the political parties represented in the assembly. Although these committees have been discussing how to get their work started without losing further time, they have been forced to wait another 25 days for the election of their chiefs. A meeting of the CA Steering Committee decided to postpone the election formerly slated for Dec. 31 by nine days. All these committees including the Constitutional Committee, which has the responsibility drafting the constitution, are behind the declared work schedule.

By now everybody knows the central purpose of the CA -- striking a bargain among the various groups represented in the House -- is so difficult. Some of these groups do not have any commitment whatsoever to this country. There are demands whose contours are not so clear. Similarly, there is a big gap between what the major political parties have been saying and what they actually mean. They are not equally committed to a successful outcome, and all of them define success differently. Indeed, this scenario makes negotiations for a new constitution difficult. On top of that, critics think the country is not in safe hands even now. The attack on the freedom of press is not an isolated example.

Writing a new constitution is a challenge. The CA has not been able to serve as a place for dialogue and understanding. Decisions reached outside the CA are generally rubber stamped after calling the House and with little debate. The overriding challenge is to come up with a common understanding of the political system that the major parties wish to build. As time is running out, the deep fault lines in constitutional politics have been laid bare and even deepened.

The four main actors in constitutional bargaining -- the revolutionary Maoists, the not-so-sure UML, the conservative Congress and the ambitious MJF -- have very different goals that have already made bargaining quite difficult. The coalition government does not have any coalition in its spirit and programmes. It is all about how to promote one's agenda from a position of power. All these actors are able to disrupt the work of the CA or organize protests against any part of constitution they do not like.

With regard to issues like empowerment, drawing of ethnic territories, autonomy and federalism, it will be very difficult to design a constitutional arrangement that will satisfy all parties. The writers, no matter how skilled they are, will have trouble developing bargains that will endure.

Considering the rebellious political leadership, it is not clear how the constitution makers are going to define the fundamental rights and freedoms of the citizens of this country. For example, settling the issue of the right to property in the new constitution vis-a-vis promises of land redistribution to the tillers and landless people is crucial for many stakeholders. This will also more or less give a picture of property ownership rights in the "New Nepal" and the possibilities of speedy investment in its development sectors.

Constitutional recognition alone is not a sufficient condition for a legal regime of robust property rights. But the new constitution is expected to reveal what a good property regime would be. This is not to question the property-affirming yet progressive aspects of the right to property (that one can see in the constitutions of Germany and South Africa, for example) but the stand-off that may emerge in the prevailing environment.

There are other out of sight issues. Reaching a bargain among the parties would apparently be much easier if it was restricted to the level of symbols and constitutional formulas that would make everybody feel that their past grievances had been acknowledged. But much more than symbols and history are at issue here. The 12-point understanding signed in 2006 in Delhi between the Maoists and the agitating parties with the support of Indian security agencies had a specific purpose. It would be foolish to conclude that the purpose has been fulfilled and that everything behind the instability is now over.

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