Category: Opinions

 The weird electoral contest between UCPN (Maoist) chief Prachanda and Nepali Congress leader Ram Chandra Poudel for the post of prime minister scheduled to be held on August 2 is not surprising. This is a product of the defective constitution that Nepal has adopted as an interim arrangement.

If Damodar Pande (1799-1804) is taken as the first prime minister of Nepal, Madhav Kumar Nepal (2009 onwards) would be the 58th. As the story given by historians goes, Pande took over the coveted position himself in the best assessment of the situation because King Rana Bahadur Shah had just abdicated, and his son and heir apparent, one-and-a-half-year-old Girvan Yuddha, was too young to replace his father. Pande faced almost no protest against his move. His rivals Bhimsen Thapa, Dalbhanjan Pande and Queen Rajrajeswari—all very powerful at the palace—were already out of the country with the king.

From this time onwards, the position of the prime minister became part of the court of the royal palace. Ever since, it was either the free choice of the king (or the queen) to appoint who the prime minister should be, or an induced choice. But it was only in 1959, or 155 years after the assassination of Prime Minister Damodar Pande, that multiparty general elections to parliament were held based on adult franchise; and B.P. Koirala, being the leader of the party commanding a two-thirds majority in the house, was appointed by the reigning king as prime minister.

In a Westminster-style parliamentary system, it is the responsibility of the head of state to ask the leader of the party commanding a majority in the House of Representatives to form a government based on his electoral strength. In a post-election scenario when there is a party in the house which is holding a clear majority of seats, there is little controversy about this matter. As such, the leader of the parliamentary party is without doubt asked to form a government in that case. There is no election in the house, whatsoever.

In alternative scenarios, or when there is no party with a majority, the head of state has to see whether a leader who can mobilise a coalition of parties to form a majority, or a minority party even if it is still far behind in the required number of votes, can provide the necessary leadership. When the head of state does so, here too, he or she is guided by the strict parliamentary convention to ask the person best placed to secure the confidence of the house (that is, the active or passive support of a plurality of its members). Once the prime minister is appointed, he or she is then asked by the head of state to form the cabinet, bring the house in order and demonstrate its confidence to carry on further.

The role of the head of state in this exercise has two immediate effects. First, by appointing the potential prime minister, he or she recognises immediately the competitive electoral strength of the party which has shown its mandate to lead the country (when compared to other competitors). Second, by recognising the leader of the house, he or she gives the opportunity to talk with the colleagues, organise a cabinet, and prepare itself for a vote of confidence.

When the prime minister is a coalition leader, or just a minority party leader as noted above, this is also the time for the prime minister to prepare a common front, sort out differences between the parties joining hands, and create grounds for a stable government. This also gives him or her the opportunity to deal with others from positions of power (by virtue of whatever electoral mandate he or she has). In such a situation, a prime minister need not go to every party to “buy” their vote, resort to malpractice and show “numerical” strength over others.

More or less, this was how it was in Nepal under the 1990 Constitution. Unfortunately, the Interim Constitution, drafted and frequently amended with the least commitment to democracy, parted with this time tested convention for hidden political reasons. It encouraged constituting a government based on “consensus” in order to facilitate a non-partisan approach in writing the constitution. But it never happened, and there is the least likelihood of it happening this time around too. A person who cannot command a majority cannot lead a consensus government either. When there is no majority party, the role of the head of state is crucial to ensure smooth sailing through the divided house. His wisdom in choosing the most suitable person as prime minister would have saved the continued legitimacy of the April 2008 elections.

The resulting malpractices, including the fast degeneration of the electoral mandate, could be easily shingled out. First, a prime minister who was still commanding a clear majority in the house was made to resign. Had the need for a “national” government been the issue, the prime minister should have been given the first opportunity to talk with the parties unrepresented in his council of ministers and expand the cabinet without smashing his team. Second, every party which can help build a new coalition, or a new national government, is now contesting for the post of prime minister, making it impossible for others to form a government (the smaller parties being insignificant in the head count).

Third, when it is very clear that the in-house election for the prime minister has failed, the constitution should have allowed the formation of a minority government without a hitch. In fact, the largest party in the house is being victimised because its strength based on the electoral mandate is not being recognised. Whether a national government or a government of a coalition of parties, the largest party should have been given the opportunity to form the government first, and take the necessary confidence initiative later. There is no provision in the constitution which states that even a minority government should be allowed to perform in good faith and that it takes a vote of confidence in due course.

Finally, the simple rule that where the house is not able to produce a government at all, it should be dissolved and fresh elections called has also not been stated in the constitution in the spirit of the Westminster tradition. Given the responsibility to adopt a new constitution for the country, the Constituent Assembly, or the country’s parliament, was not provided this option. There is logic in this argument. But the net effect of all these constitutional defects is that this country cannot produce a government on the basis of the constitution.

What is there as a direction, then? There are two possible options. The first direction is another lot of compromises on Nepal and its institutions. The Interim Constitution created an elephant without providing a mahout. The mahout is operating from outside the constitutional regime—defeating the purpose of democracy and the rule of law.

Or, as stated in the beginning, a new Damodar Pande will have to emerge who will proclaim himself the new protector for the transition. Suffice here to pinpoint what led to the rise of Jung Bahadur. The history of the world shows that a constitution does not become democratic simply because it has been drafted by a popular leadership. One must not be oblivious of the requirements of the law of the constitution in a democratic framework

 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.

 ”It is very dangerous to buy time looking for drastic changes in the balance of power in the country before letting the CA resume its work. To put it more categorically, any attempt towards helping a split in the UCPN (Maoist), supposedly to “rightsize” it in the CA, is a most irresponsible approach to handling the situation. Its breakup into rival forces is not in the interest of Nepal. “

It has already been 20 days since the tenure of the Constituent Assembly (CA) was extended on May 28 for an additional one year. Three days after, on June 1, CA Chairman Subash Nembang, otherwise an unassuming speaker, warned all the political parties represented in the CA that business as usual would not help to write a new constitution.

As he pointed out, strong commitment on the part of all and willingness of the three major parties — the UCPN (Maoist), Nepali Congress and UML — to implement the understanding signed with each other on the midnight of May 28 are the preconditions to get the job done. Since then, 17 days have already passed. But there has been no change either in the attitude or in the temperament or the modus operandi of the major contenders for power. Rather, what was written so clearly in the memorandum of understanding signed in the presence of UML leader Khadga Oli has become undecipherable.

It is not surprising though. Many agreements and understandings that were negotiated and signed in the past had met a similar fate. Agreements should not be signed if they are not going to be kept. A sort of “elitism” in the best sense of the term is so crucial for the success of any venture as demanding as writing a new constitution through a constituent assembly. None of the constitutional conventions, or a CA like ours, has ever succeeded in its mission unless it had proud “elitist” leaders who were a cut above the masses and who had extraordinary skills, abilities and wisdom, or commitment to the principles of public morality, democracy and the virtues of the rule of law.

In many cases, it is the elitist leaders, especially those with charismatic powers, who have helped regain the lost egalitarianism in many societies as the governing principle of the day and not vice versa. This egalitarianism and commitment to the consent of the “governed” provide the moral strength in the process of change. When there are such leaders, vocal and out for these values, they are able to find a democratic exit for the country, whether through the constituent assembly or otherwise.

One such “elite” leader in Nepal who could represent the mass with the strength of his personality and character was B.P. Koirala (1914-82) — probably the only politician in the country who could qualify for the term “statesman”. He was far ahead of his time. He practised atheism, defended secularism, advocated emotional (sexual) freedom, opined in favour of euthanasia, pleaded for the right to commit suicide in appropriate cases, and stood for modernity in all aspects of the law and society.

These qualities in him ignited most of the leaders of his generation, yet his life and work had a profound influence on the mental make-up of the nation, its social structure and intellectual development. As long as Koirala was alive, the political system had no other option but to maintain a façade of basic democratic values and nationalism, whatever was the political system of the day. He maintained the terms of the political culture and the processes of change, even though the system and its external patrons were always up to his neck. With his demise in 1982, the country lost a moral authority. The situation has not changed much even now.

When it comes to India, Jawaharlal Nehru (prime minister 1947-64), a highly educated “elite”, had a similar impact on the psyche of a newly unified India. He was the answer to the enormous challenges that the Constituent Assembly and several years of transitional problems thereafter that India had to face. Without him, not just his associates like Ambedkar but also Vallabhbhai Patel, Rajendra Prasad and Abdul Kalam Azad would not have been able to steer the CA process forward. The presence of Nehru in the Indian Constituent Assembly was a guarantee for the use of talents like B.N. Rau, the constitutional adviser, and S.N. Mukherjee, the chief draftsman of the Indian constitution. Nehru’s enlightened ideas and aspirations remained unchallenged in the assembly, and that provided the guarantee that an aspiring new democracy needed to draft a democratic constitution.

This is true about most of the American founding fathers as well. It was a very different generation by modern standards, but most of them who were taking the lead as signers of the declaration of independence or the framers of the new constitution were a highly motivated “elite” of the day. Whether as politicians or jurists or statesmen or soldiers or diplomats or ordinary citizens, their leadership gave not just a moral character to the changes on behalf of the common people, but also a human face to the changes. What is written in the formal document is one thing, but who have written it for posterity and who are implementing it is also no less important.

The fact that the CA is in limbo and that it is no one’s priority has become very clear to everybody in Nepal by now. Who wanted it and for what purpose is also becoming clearer to the educated masses of Nepal. There could be many discussions on whether those who steered the process forward had sustainable options available to them. There could be a number of charges against the existing leadership, their professional abilities, and their concept of right and wrong, and also the sense of change. But the most basic thing is that the CA must produce a constitution amid all these challenges and help the country emerge from the existing mess. A change in government, and more clearly, implementation of the three-point understanding of May 28 is crucial for this purpose.

It is very dangerous to buy time looking for drastic changes in the balance of power in the country before letting the CA resume its work. To put it more categorically, any attempt towards helping a split in the UCPN (Maoist), supposedly to “rightsize” it in the CA, is a most irresponsible approach to handling the situation. Its breakup into rival forces is not in the interest of Nepal.

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 The position of prime minister in the model of democracy that Nepal is practicing is no longer powerful and exulted. He does have many powers, as far as theory goes, but he can exercise them only upon the aid and advice of others, seen or unseen in the formal structure of the state. In a way, the executive prime minister of Nepal has long become a ceremonial prime minister. The revolutionary change in his status has gone largely unnoticed.

The recent helplessness of the prime minister is a new case in point. The winter session of the legislature has been put off, while the demand for his resignation is still unsettled. The parties in the House were allowed to discuss his fate, but he was not called to cut short the discussion and register a confidence motion to show whether he deserves continuation or needs to resign as somebody who does not command the confidence of his electors.

The question is how could a system of government, where the principal executive of the country has been deliberately kept at such a low ebb in the power structure, guarantee a functioning democracy, not to mention adoption of a new constitution. Unfortunately, the party bosses of the present coalition have underscored how educative the Article 55A process must have been to the people as to the demand for the prime minister’s resignation amid the current political wrangling and its legitimacy.

Instead, the prime minister has been put on hold. He is under a bond to resign no sooner than there is a consensus between major parties clearing the way for another national government. The consensus seems to be elusive because all the considerations that are involved in the negotiations are not on the table. For the purpose of the ongoing transition, it hardly matters whether the UCPN (Maoist) runs the government or one of the present coalition partners, or the government of Madhav Kumar Nepal, with or without any reshuffle.

The major issue is whether there is a guarantee that that Constituent Assembly is going to produce a “democratic” constitution based on civilised parameters, and whether such a constitution is designed to protect Nepal’s independence and its national interest. This concern must not be evaded in the process. Yet, that is not the concern anymore.

The term of the CA has been extended for one additional year without really putting this issue on the table, and making it a significant item on the agenda. There was not even a debate whether it needs a one-year extension, or a three-month or six-month extension. While the Maoists did not have any particular proposal, the Nepali Congress had proposed only a six-month extension. The fact, however, remains that even the government had no position in this matter. When CA Chairperson Subas C. Nembang strongly pressured the prime minister to lodge the constitutional amendment bill by May 16, the government agreed to do it. The move was intended to allow sufficient time for in-house procedures, should there be a decision to extend the life of the CA, based on any forthcoming consensus between the parties. The one-year extension was just the proposition of the legal draftsmen who worked on the draft bill, knowing that there could be pressure to reduce the term. Not even the UML had cleared it as proposed.

Be that as it may, there is no controversy that CPN-UML leader K.P. Oli (acting on behalf of the coalition partners) had agreed to the resignation of the prime minister within five days at the time when the three-point understanding was signed between his party, the Maoists and the Nepali Congress at midnight of May 28. Unprincipled though it was to sign such an indenture without sorting out the crucial issues of divergence between the present coalition and the Maoists, it is the truth that the resignation of the prime minister was negotiated in the same spirit in which the Maoist leaders have been claiming it now. There could be questions on whether an understanding on this particular issue should have been sought or not. But the attempt to back out from the understanding, so cleanly worked out, does not help the credibility of the political parties and their ability to bring changes.

Quite the contrary, after some initial hesitation, the UML has now concluded that the prime minister does not have to quit unless the parties arrive at a consensus on implementation of past agreements on the peace process and constitution drafting. It was said that the first point of the three-point understanding, which is about implementing past agreements, and the third point on immediate resignation of the prime minister should be implemented simultaneously. Additionally, some UML and Nepali Congress leaders have said that there was no such understanding, and that there should be an agreement on integration of Maoist combatants, return of properties seized during the insurgency and dismantling of the paramilitary structure of the Young Communist League (YCL) before the prime minister resigns. Maybe these arguments have elements of truth, but the understanding signed between the major parties unconditionally states that the prime minister shall resign. No arguments can vitiate what has been written in black and white.

It is not clear what loss the present coalition would suffer if the prime minister resigns as agreed. Such a resignation does not mean that the leader of the opposition is going to form a government at once. As long as the coalition is intact, the opposition cannot make any dent in the current balance of power. Rather, such a resignation would fulfill the main Maoist demand at the moment. It would then be their turn to implement what they had agreed on through the three-point understanding. Such an arrangement would allow the government to continue as a “caretaker” and also create the political environment for forward progress.

A caretaker government can continue performing the rudimentary duties of the state (including maintaining law and order and ensuring that its machinery continues to function so that the day-to-day task of administration can be carried out). It cannot remain in that capacity for more than a reasonable period. But this environment will help the major parties to work on compromise solutions. If the remaining part of the three-point understanding is not honestly implemented, the government can always activate the constitutional process and reclaim its lost status as a full-fledged government. It is not clear why this straight constitutional way out is being ignored by the government and its coalition partners.

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 Back to April 24, 2006 — the date has historical importance. If an unruly mass of people, ignoring the rule of law and the constitution, can force the reinstatement of the parliament which had long been dissolved, can’t a similar protest pull the government down when it is not possible to do so from within parliament? After all, if the rule of law, or the constitution for that matter, can be compromised for the Seven-Party Alliance (SPA), why cannot it be compromised for the UCPN (Maoist)? The problem is old although the example is new.

When the Maoist demonstrators were passing by Setopul towards Old Baneshwor yesterday, the slogan they were chanting was “Yaspaliko haija Makune lai laija” (may the cholera epidemic this year take away Madhav Kumar Nepal for good (and, consequently, create space for the Maoists).

As it happens in this poor country, whenever there is an outbreak of cholera, it does not just claim the life of one such individual; but hundreds. Whether it is cholera or Nepal “closure” — the effect is the same on the common people. Yet, that did not matter to the people in the Maoist march-past. In order to pull down the prime minister, they have almost paralysed the whole country and made the life of the common people miserable. The claim is that no matter what the constitution says, the Maoists must be allowed to form a national government and draft a constitution that promotes their line of thought. The ground for such a claim is that they can garner the support of a few thousand people against the lawful government and demonstrate in the city in frightening ways.

Both the claim and the grounds are bizarre in a culture that supports the rule of law and constitutional democracy. Harvard political theorist Samuel Huntington, who passed away in December 2008, was crucial in helping shape modern views on so many important issues of the last five decades or so including civilian-military relations, political development, comparative government and what he described as the global clash of cultures in his famous 1996 book. It is strange that this type of phenomenon did not come to his analysis.

Building on his theme of clash of civilisations, Huntington wrote that current global politics should be understood as the result of deep-seated conflicts between great cultures and religions of the world. The unifying drive for order that had been at the center of Huntington’s analysis of the cold war now gave way to a dark vision of a world irreconcilably divided along radically different civilisations with fundamentally divergent values — more specifically those of the secular West and the Islamic world. For many, this perspective created a context for that conflict. All other issues fell in the margins. His thesis acquired something like a prophetic authority.

Yet, the cold war has not gone even though Huntington is no more to see it through his Eurocentric prism. It is not cultures that are at loggerheads here. It is the determination of the people to practice democracy that is being assailed. Nepal is still a parliamentary democracy in which the government (the executive) must be supported, or at least tolerated, by parliament, if it is to sustain. By definition, then, a government must remain tolerated by an absolute majority (50 + 1 percent) of the members of parliament. If an absolute majority actively opposes a government (i.e., it is willing to vote to remove it from power), then it will have to resign. The Maoists have not been able to garner an absolute majority in parliament and move a no-confidence motion in order to pull the government down. Yet, they want to do it by methods which are not constitutional.

Responding to the situation, a civil society group led by senior journalist Kanak Dixit issued a timely press release yesterday: “This general strike imposed by the UCPN (Maoist) is destroying the national economy even as millions of students are kept from attending school and college. The livelihoods of the peasantry have been affected countrywide. Those relying on daily wage labour to keep the family fed are confronted with a crisis. Meanwhile, tens of thousands of young adults have been trapped in a campaign based on violence and anarchy. We believe this attempt to take a society in transition towards confrontation can only increase the country’s vulnerability to foreign forces.”

It categorically highlighted, “The Interim Constitution of Nepal is itself a document representing consensus and cooperation, and the Maoist party must seek response to its demands within the bounds of this document. We, therefore, appeal to the UCPN (Maoist) to end its general strike and return to the Legislative Parliament. As the largest party in the House, we urge the UCPN (Maoist) to re-engage in the task of constitution-writing. We also appeal to the Maoists to abide by the six-point understanding reached at the High Level Political Mechanism of the three largest parties.”

There is little more to be said on the ongoing Maoist movement than that. But what is even more important on the part of civil society is the consistent determination to fight out planned lawlessness by forcing compliance with the basics of constitutional culture. The basic values should not be negotiable — no matter how the issues are approached and solutions crafted. Willingness to compromise on the basic values leads to disaster.

In the discourse of democracy, whether it is the regime of King Gyanendra, G.P. Koirala or Madhav Kumar Nepal, civil society should remind everybody, thoroughly and consistently, that the country is governed by a written document, one that creates institutions of government and sets limits on what the government may do. The belief that the constitution is created by the citizenry, and that although it is not timeless, the understanding that until it is changed or revised, everybody is bound by it is the basic constitutional culture that has been wrecked in Nepal in recent years.

The people must be required to go along with its ultimate results even though they are free to disagree with them. The failure to appreciate the creation of a constitutional culture is a serious oversight. Had it been in order, Nepal would not only have efficiently protected its basic democratic credentials, but also the sovereignty of its people and the political institutions. It would not have been possible for anybody to overrun the dignity of the common people. Instead, what has come to exist is what poet Matthew Arnold has written in his poem “Dover Beach”:

“Nor certitude, nor peace, nor help for pain;
And we are here as on a darkling plain
Swept with confused alarms of struggle and flight,
Where ignorant armies clash by night.”

 May 28 is quite close. The long awaited day when the new constitution of Nepal was expected to be promulgated is about to pass without any constitution being adopted and promulgated. This is not a serious concern at the moment though. The serious concern is that even the Constituent Assembly is going to expire on May 28 — leaving its unfinished business in the sands of history. Lack of consensus between the Unified Communist Party of Nepal (Maoist) and the governing coalition is preventing the CA from even amending the constitution — extending its timeframe for another mutually agreed duration.

While negotiations are going on between contending parties, the fear among the people as to the situation that will unfold after May 28 is not baseless. After this day, the CA and all decision making structures within the assembly will cease to exist. The country’s legislature, which has been conceived as the tail, cannot continue to exist in the absence of the head — the CA. A scenario where the legislature has already disappeared will create several constitutional hiccups including in the system of validating the national budget, passing the Appropriation Act and raising taxes and approving expenditures.

The constitutional functionaries will gradually become defunct in the absence of appointing and monitoring bodies including the Constitutional Council. The government of the day, in the absence of a functioning legislature, will automatically become a “caretaker’ government”— not supposed to take major decisions affecting public policies. The president, who is supposed to continue till a new constitution is promulgated, will be under pressure of the constitutional vacuum that comes to exist in the country. Although the constitution will continue to operate, its status will change to that of a lame duck.

There are some leaders who have spoken of general elections for a new mandate from the people after May 28. Unfortunately, the Interim Constitution does not provide for any such election. It never conceived of the failure of the CA to deliver a new constitution and end the transitional arrangement with a full fledged constitutional system. It simply does not authorize any general elections, even as an exceptional or emergency arrangement. Should it be pursued any further, the Constitution must be amended before May 28 created enabling provisions. This is not going to happen so easily. Had it been easier to strike a compromise between the ruling coalition and the Maoist opposition, thereby creating a two-thirds majority in the house, such a problem would never have come up. Apparently, the transition has come to a dead end.

In such a situation, as has happened all through these years ever since 2002, the politicians, either as a consensual force or as a partisan group, will prevail over the fate of the nation and the concept of the rule of law in whatever amount it still survives. Again, Article 158 (the power to remove difficulties) will be invoked. If not, some lawyers will not hesitate to advise the government to declare a state of emergency before the May 28 deadline, and then subsequently extend the tenure of the house for six months by a resolution. The media has already reported a couple of opinions that the “constitutional crisis” itself is enough grounds for imposition of a national emergency. Although this concept will be difficult to sell to a court of law, under Article 143 of the Constitution, there are apparently many politicians around who would be happy with that interpretation. Even if one of these two options is tried, the nerve of the knowledgeable politicians will go down when they find that both these options need the approval of the legislature no sooner than the euphoria it creates dies down.

Additionally, there is also loose talk in town that the CA will continue to exist even after May 28; but in that case, it will remain inoperative until a mutually agreed arrangement is in place, and the Interim Constitution is amended to give effect to them. People championing this way out should perhaps think why Article 64 states that the tenure of the CA is two years. This is complete nonsense.

What this situation means to the political scenario is then very clear. The logic of rebellion will be invoked once again. Several rounds of decisions will again be made, keeping the people off from the political process. Most of these decisions will affect the quality of governance and the national interest of this poor country. Since it has happened in the past in a way that has surprised most serious people, there is no reason to believe that it will not be repeated.

This unfortunate situation must not come. It will not help anybody including the Maoists. In a way, democracy and the rule of law is much more necessary to a rebellious force of the country than others playing safe politics. All civic arrangements are doomed to fail if democracy is not the destiny of political groups. From a human and historical vantage point, Maoist people’s wars have been disasters everywhere. There is no reason why this disaster should continue to haunt the people of Nepal.

The ongoing warlike situation is due to the limited ability to fight a war. As far as the issue of integration of the combatants is concerned, this should be the responsibility of the state to be exercised in a way that furthers the prospects of peace and easy democratic landing for the Maoists. Of course, their claim to the leadership of the national government, if that comes through, should be promptly taken positively. There should, however, be a guarantee that democracy (in the civilized Western parameters) should not be tampered with when drafting the new constitution. The fight is over with this.

It is said that the Anglo-Zanzibar war of 1896 was fought for only 45 minutes. It holds the record of being the shortest war in the recorded history of the world, yet it achieved its objective. A change of strategy can help the Constitution be amended within the next four days leading to the least dangerous exit point for the remaining constitution writing job. The rest is decided in a democracy by the people, who hardly join the streets.

 Mao’s tactics of guerrilla war were very simple: “The enemy advances, we retreat. The enemy camps, we harass. The enemy tires, we attack. The enemy retreats, we pursue.” Mao did not envisage a peace process in the theory of his war; neither had he ever considered a change in his tactics.

The ongoing unruly behavior of the Maoist leaders and cadres, including resurgence of training and warming up activities of youths throughout the country, only reminds us of the truth that the peace process is being taken as no more than a tactical move. They only show that there is no intention of creating a win-win situation for both the Maoists and the non-Maoists, through the Constituent Assembly, keeping the democratic system as the bottom line.

Apparently, there are problems of integrity and commitment on the part of the Maoists; but the role of the state, or the leaders of the seven-party alliance, and subsequent governments for that matter, has been pathetic throughout the last four years.

The Interim Constitution provided for a transitional provision for the combatants, which had its background in all the peace agreements signed in the past including the 12-point understanding, the eight-point agreement and the 25-point code of conduct, the five-point letter sent to the United Nations and the decision taken at the meeting of high level leaders held on Nov. 8, 2006. This enabled the council of ministers, which was supposed to work through a special committee representing the major political parties in the CA to supervise, integrate and rehabilitate the Maoist combatants.

This special committee was a significant provision which could have enabled the government to pursue the DDRR processes (disarmament, demobilisation, rehabilitation and re-integration) in consultation with technical experts. It was enough for the government to take over the command, control and supervision of the combatants. Unfortunately, the lack of initiative on the part of the government consequently helped the Maoists to continue politicking without much change in their combatants’ status, and thus keep doing politics without losing the party security apparatus.

From the very beginning, the Maoists were effective in pushing the issues of their concerns at the peace negotiations far more effectively than the state. The harsh fact is that the state treated its army and the Maoist combatants at par, and even demoralised it by stating in the constitution that it is not “inclusive”; and that it needs to be democratised. While security sector reform, professionalisation of the national army and civilian supremacy over it are always important issues for the purpose of national defence, it is absurd to talk about “democratisation of the army” — for the commanders are never elected by ballot, and they are not to be expected to report to the district-level party bosses. The issue is professionalisation of the army, and enhancing its efficiency and dexterity.

Three major transitional activities were critical to the success of the post-insurgency peace-building project: DDRR, security sector reform and setting into motion the process of addressing the underlying cultural, economic, political and social causes behind the conflict. While the new constitution can handle the later components well at this stage, the issue of DDRR is suffering because of the policy of appeasement that has been followed by the government ever since the restoration of parliament in 2006. This included, among other things, the inability of the government to say an emphatic “no” to the talk of en masse integration of former combatants into the army.

There is so far no such trend anywhere in the world. There are physical and professional standards to be followed when somebody is recruited as a soldier. There are national security implications when those who are recruited into the army are politically indoctrinated people. They cannot remain disciplined, professional, competitive and apolitical even after being trained. Such bulk integration regardless of their strength in guerrilla techniques not only challenges the internal cohesion within the national army, but also helps it to disintegrate, whether the chain of command has been accepted or not. This issue must not be ignored.

It is not quite clear, but on April 16, the political parties except the UCPN (Maoist) have in principle agreed to integrate en masse about 3,000 former Maoist combatants into the security agencies very soon. They agreed to this effect at the meeting of the special committee referred to above either to take in up 3,000 Maoist combatants or to carry out integration on the basis of one weapon, one combatant basis. The government arrived at the figure taking into account the arms handed over by the combatants to the UN, which amounted to about 3,000 units. The prime minister proposed that the combatants could be integrated into the Army, the Armed Police Force, the Nepal Police or any other security outfit that comes into being.

The combatants are also offered the opportunity of voluntary retirement from the existing cantonments and rehabilitation opportunities as per their wish. The opportunities, however, must not be limited to only small-scale income generating enterprises, increased possibility of employment due to acquired building skills and peaceful cohabitation of ex-combatants and community members and so forth. They need jobs, at least for some years, to make sure that they do not take up arms again after the money they receive from the government is spent, and there is plenty of time to scatter around. There is no reason why the government should not mobilise the private sector to create vacancies for them. Since they are the worst sufferers, they have their stakes as well.

An unemployed combatant is always a threat to public security. He or she can also be easily misused by unscrupulous sources. There have not been sincere efforts to engage the Maoist leadership with workable options. They too have some responsibility towards the people who fought for them. At the same time, educating the general public that the government is taking care of them is part of the process to create public pressure on the Maoists. This has not happened. If the Maoists are still ambivalent today, whether they should cooperate with the adoption of the new constitution or fish in muddy waters, it is because their source of power is intact in the safe hands of UNMIN. The government has been devoid of tactical moves. After all, democracy does not mean lack of strategies and long-term planning.

The process of integration is a comprehensive process. DDRR must go hand in hand. How difficult the issue of integration and rehabilitation of the Maoist combatants is, however, can be understood when one reads American novelist James Gould Cozzens’ remarks: “Real rebels are rarely anything but second-rate outside their rebellion; the drain of time and temper is ruinous to any other accomplishment.” The challenge is definitely enormous.

 Recently, references in the media as to what the president needs to do if the Constituent Assembly (CA) is not able to deliver a new constitution by Friday, May 28, have become quite frequent.

There is clear indication that a new democratic constitution by May 28 is unlikely. There are many issues which are yet to be resolved, but too little efforts to materialise them. Even the possibility of the Constituent Assembly coming up with a framework constitution, based on crucial compromises on important political and constitutional issues, leaving the details for the future, looks slim.

The rest, including the (controversial) amendment of Article 64 of the Interim Constitution, to extend the tenure of the CA, and a new deadline, is at the mercy of UCPN (Maoist). Without its backing, the house cannot garner a two-third majority to pass any amendment bill. The Maoist party is aware of this, and as long as it is not in the driving seat, it thinks there is simply not enough incentive for it to gratify anybody. The road map, however, does not seem to have a signpost for the changeover. The limits of negotiation are no more secret.

This status quo cannot continue after May 28. On May 29, the Constituent Assembly will cease to exist. All existing institutions based on the CA will also lose their constitutional status. The principles of revolutionary legality, pursued by the leaders of the Jana Andolan II, cannot possibly be resurrected as the revolutionary fervour has died down. Girija Prasad Koirala, who gave democratic face to the recent restructuring of Nepal, is also no more. It is natural for people, therefore, to look at the president and try to fathom what he will do as the last authority in the state hierarchy.

Nobody wants the president to usurp the space for democratic politics. But any delay in properly assessing the situation might not help the democratic and nationalist aspirations of the common people. After all, those who know how dictators proliferated during the last two centuries in Europe, which witnessed the rise and fall of fascism and communism, but also in the Middle East, Africa, Asia, and Latin America, where military as well as ideological dictators have emerged, understand that time and tide will not wait even for the president.

Assumption of power by potential dictators in a volatile situation as now persists in the country is nothing new. Every dictator is a product of his time. It hardly comes on all of a sudden and out of the blue. The need is felt acutely, and somebody takes the lead and fills up the power vacuum. In fact, if one goes by history, words like ‘dictator’ and ‘tyrant’ hardly bore any negative connotations in the beginning. One can find many references, when the term ‘dictator’ was used to indicate a person taking over power for a limited time to deal with an emergency. Similarly, the word ‘tyrant’, which has no positive overtone anymore, was also a respectable Greek title for most of history. But the story does not stop there.

The rise of all dictators including Pol Pot, Mao Zedong, Ho Chi Minh, Ferdinand Marcos, Napoleon Bonaparte, Slobodan Milosevich, Muammar al Quaddafi, Josef Stalin, Leonid Brezhnev, Juan Perón, Manuel Noriega, Fulgencio Battista, Saddam Hussein, Adolf Hitler, and many more epitomise the phenomena. There are dozens of examples to be found in Nepal’s neighbourhood of how dictatorships develop and are sustained — from Burma to Afghanistan, China to Sri Lanka.

So long as the constitution is not amended, and the future direction is charted out through this process, the president of Nepal as a constitutional head of the state has little responsibility. However, the demise of the Constituent Assembly, by all means, leads to a constitutional crisis, which must be tackled in order to set the future course. The failure of the constitutional machinery, and the inability of the government to give a legitimate outlet to the nation, does not mean that the president should not come up with a contingency plan to minimise the risks to the country in this unfortunate situation.

A strong component of such a contingency plan, no doubt, involves massive security arrangements to keep the situation under control, and ad hoc arrangements to allow further opportunities for the political forces to design a democratic exit strategy. This also involves a series of decisions about the peace process, and management of combatants in different cantonments under the supervision of the United Nations Mission in Nepal. There is no reason why the president should not take an initiative to start the consultation process. If it is too much for the president, then the political machinery must be able to convince the nation that it has both the capacity and willingness to deliver according to the letter and spirit of the constitution.

There must be an exit point for every political crisis if the country is to move ahead. The president, even though he was elected to be a constitutional president, cannot keep watching from the sidelines while the country is close to disaster.

In Nepal itself, the Licchavi King Amshuvarma (605-629 AD) is a great example. He took the throne when his father-in-law died, there was no heir apparent, and the situation was shaky. He married his daughter to Tibetan king Srong Chong Gampo and sister to king Samudragupta of Maurya dynasty of India, thus keeping Nepal safe from neighbourhood challenges. If the account of the famous Chinese traveller Huen Tsang is true, Amshuvarma was greatly helpful in maintaining the glory of his country. In the age of feudal relationships, there would not have been any better alternative to the situation.

Similarly, Giuseppe Garibaldi, the Italian revolutionary of the 19th century, also proclaimed himself as an interlocutor during his famous Expedition of the Thousand. Garibaldi was not a popular choice. But this did not prevent him from being awfully popular in Italy and in the estimates of international public.

The position of the president of Nepal is that of a constitutional president. (It is not a ceremonial position.) He is not supposed to have any independent power, but there is nothing in the constitution that bars him from facilitating the constitutional process as the head of the nation to find a democratic exit for the country.