Nepal Constituent Assembly Opportunity Missed: Civil Services Mentor Magazine July 2012

Four years after being elected, Nepal’s Constituent Assembly (CA) got dissolved without delivering a statute. Prime Minister Baburam Bhattarai’s Cabinet, despite opposition from a major ruling partner, decided to holdfresh elections on November 22 for a new CA. The deal-breaker was the contentious issue of federalism. The Maoist-Madhesi combine sought a firm commitment that the 10- state model or the 14-state model, recommended by the constitutional commission and committee respectively, would be guaranteed as the basis for federal restructuring. The Constituent Assembly was elected to a two-year term in 2008 to draft a new constitution but has been unable to finish the task. Its tenure has been extended four times, but the Supreme Court rejected any further extensions. The assembly’s formation came two years after prodemocracy protests forced Nepal’s king to give up authoritarian rule and restore democracy in the country. One of the assembly’s first decisions was to abolish the centuries-old monarchy and convert Nepal into a republic. The political parties have been able to resolve some other thorny differences in the past, including the future of thousands of Maoist rebel fighters who were confined to camps after giving up their armed revolt in 2006. However, they have not been able to agree on the ethnic issue.

The Janjati MP caucus also agreed to have multiple names — one ethnic and one neutral — in the hill provinces, a key demand of the NC and the UML. But the NC and the UML favoured promulgating the Constitution with an in-principle commitment to federalism, while leaving the contentious issues such as numbers, names and boundaries of the states to a transformed legislative-parliament. Sources say the parties then decided that the chances of a constitution were “nil” and began discussing other “appropriate ar rangements” in the chamber of the CA Chairman to avert a crisis. The first option discussed was elections for a new assembly, while the second was declaring an emergency to extend the term of the House. The key ruling allies, the Maoists and the Madhesis, chose the first option. A day after Nepal’s Constituent Assembly was dissolved without the constitution being written, top parties traded accusations and failed to ar rive at a common roadmap. The Unified Communist Party of Nepal (Maoist) blamed “reactionaries” for stalling a federal constitution. The Nepali Congress and Communist Party of Nepal (Unified Marxist Leninist) said that they saw the CA dissolution as a “Maoist conspiracy to capture state power”.

The parties spent far too much energy squabbling over government formation and power-sharing. The issue of integration of Maoist combatants dragged on for years. Senior politicians did not engage intensively in constitutional debates till ver y late. At a press conference, Maoist chairman Pushpa Kamal Dahal ‘Prachanda’ said that his party had tried to save the CA till the very end, and had even contemplated  imposing an emergency to extend the CA’s tenure. But ultimately, he argued, “The only democratic option was going for elections. Mr. Prachanda said tha t the core problem was that the NC and the UML did not “understand the essence of federalism” and were “scared” of it. “How can we write a constitution which does not address the aspirations of a large segment of our population? Writing the new constitution was supposed to cap an interim period aimed at solidifying details of Nepal’s democracy after the country turned the page on centuries of royal rule and resolved a decade-long Maoist insurgency by bringing the former combatants into the political mainstream.

Breaking his silence on dissolution of the Constituent Assembly, Nepal President Ram Baran Yadav has termed Prime Minister Bhattarai’s government as caretaker. Issuing a statement, the President’s office directed Bhattarai to act in a caretaker capacity till the next government takes charge. There was uncertainty in Nepal following the move as who would take control of executive powers, the President or the Prime Minister, after the sudden move. “To remove the air of uncertainty the President consulted with legal and constitutional experts and took the decision on his own”. Several political parties including NC & UML had termed the government move unconstitutional and demanded Bhattarai’s resignation. But the statement issued by Shital Niwas, the President’s official residence cited provisions of the interim constitution which states that since Bhattarai has ceased to be a CA member, he can only act in caretaker capacity. The statement urged all political parties to move ahead with consensus to deal with the fresh political crisis. Meanwhile a writ petition was filed in the Supreme Court challenging the government move to dissolve the CA without promulgating the new statute. Nepal’s interim constitution has no provision of what would happen if the CA fails to deliver a new constitution. The interim constitution did not envisage such a situation. There is no platform left to amend it either. Everything has to happen according to political consensus even to g et to the election stage. Otherwise, there will be legal challenges. The deepening political battle, and a possibility of confrontation between existing institutions, has thrown into question the prospects of a timely election.

Judicial strictures and deep political divisions prevented a further extension but history will judge the current political leadership harshly for failing to meet the longstanding aspiration of citizens to draw their own social contract. The CA itself was reduced to a mere rubber-stamp, and contentious issues were never put to vote. The breaking point was the issue of federalism. The Nepali Congress and Communist Party of Nepal (Unified Marxist Leninist) — reluctant federalists at best — were keen on postponing the issue for a future parliament. But a constitution without specific agreement on identity-based federalism was unacceptable to the Maoists, Madhesis, and ethnic communities. The only silver lining is that things could have been worse — a constitution not owned by marginalised communities who constitute over half the population, or a state of emergency. The Baburam Bhattar ai-led government has now declared elections for a new CA in November. The NC and UML have opposed the move, questioning its constitutionality. They have also, regrettably, urged President Ram Baran Yadav to be assertive. The President would be well-advised to operate strictly according to the spirit of the interim Constitution, which envisages a purely ceremonial role for him. Any adventurism would risk the stability of state institutions and deepen polarisation. As unpalatable as elections may be to the NC and UML, there is no other alternative but to go back to the people. The interim Constitution is based on the principle of political consensus and the onus lies on the current caretaker Maoist-Madhesi government to reach out to the other parties. An agreement is needed to decide on the new election framework. All parties should also reaffirm their commitment to basic principles like republicanism, secularism, federalism, democracy and inclusion. A lot of work was done by the CA committees, and this must be safeguarded as Nepal’s national property which can be used in the future as a basis for discussions. If Nepali politicians do  not stop their brinkmanship and work together, they not only risk all the achievements of the 2006 janandolan but also their own political survival.

Suraj Singh Mehar