It has been over 100 days since the term of Nepal’s Constituent Assembly (CA) expired without delivering a constitution.
Since then, the ruling Maoist-Madhesi front alliance has blamed the other parties for being “anti-federal,” and insisted on a broad deal to determine a future political road map. The Opposition, led by the Nepali Congress (NC) and Communist Party of Nepal (Unified Marxist Leninist), has accused the government of deliberately ‘dissolving’ the CA, and demanded its resignation. In the meantime, there is an emerging constitutional crisis and the political theatre has got more complex. Talks have resumed between the different forces, but a deal is elusive.
Constitutional tussle
The Baburam Bhattarai-led government has been functioning as a caretaker arrangement. With no legislature, it cannot pass any laws and is dependent on President Ram Baran Yadav to promulgate ordinances.
The government had announced elections for a new CA on November 22, though the interim constitution did not envisage fresh polls. One way out would have been for the President to use discretionary power to “remove obstacles” by issuing ordinances to amend election-related provisions in the statute. But Dr. Yadav has refused to do so, and cited the need for a broad political consensus first. Polls are thus not possible.
Only a one-third budget was issued at the beginning of the fiscal year in mid-July, after the Opposition and the President came together to reject the government’s proposal of a full budget. Key constitutional positions — in the Supreme Court as well as Election Commission — will fall vacant in a few weeks. Parliamentary approval is needed to fill these positions, and the government is hoping to avoid the vacuum through ordinances. But the President is no mood to accept it.
All of this has created the ground for a possible confrontation between the two institutions. The PM’s case rests on the fact that executive authority is with the cabinet, and a ceremonial president is overstepping his bounds. A former NC leader who has maintained close ties with his former party, the President believes that the government has little constitutional, political and moral authority and is seeking to “rule by ordinances.” But his aides say the head of state knows the risks involved in any unilateral step — like dismissing the government — and will not act in a manner that will invite a new conflict.
Relations with India
The political theatre has got more complicated too. The Maoists have split, and the radical splinter faction led by Mohan Vaidya “Kiran” has presented 70 demands — many to do with overhauling the special relationship with India. The party has threatened to revert to an insurgency if the demands are not met.
The establishment faction of the Maoists, led by chairman Prachanda, has sought to compensate for this loss by creating a Federal Democratic Republican Alliance (FDRA) along with the Madhesi parties. Janjati (indigenous peoples) leaders of the UML are on the verge of splitting from their parent party, accusing it of being against federalism. The churning is a sign that identity-based discrimination, and how to address it, will be at the centre of any future political battle.
The NC is in a mess, with its top three leaders — president Sushil Koirala, senior leader Sher Bahadur Deuba, and former parliamentary party chief Ram Chandra Poudel — vying to become the next PM even though there is no vacancy for the job yet. The party is also confused on the federal issue.
Royalists, for their part, have claimed that the interim constitution is now “illegal,” and so former monarch Gyanendra must be brought back. A Hindutva group recently issued a death threat to a Dalit artist for certain creations, terming it “blasphemy.” The right wing assertion has coincided with increased public disillusionment with the political class for abysmal governance. With the country staring at 21-hour power cuts this winter, inflation and rising unemployment, anger is the defining street emotion.
The way out
In this backdrop, forces still committed to the values of the 2006 change — republicanism, federalism, secularism, democracy and inclusion — must decide on a way forward to safeguard these changes as soon as possible. Two options are being discussed.
Option one is to find an agreement on the contentious issue of federalism, and then reinstate the CA for a short period of time. This is the shortest and easiest route, and will help preserve all the work done by the CA so far. There are also concerns about going in for polls at such a moment when identity politics is at its peak and could turn violent; polls could also throw up a more fragmented result, making the task of constitution writing even more difficult.
All parties are nervous about their electoral fate, fatigued, and would like to wrap up the transition. NC sees the chance of coming back to power, leading a unity government, if there is such a deal. Mr. Prachanda would also be able to lock in the unwritten agreement on a mixed form of government, and aim to become the next president.
But there are several problems.
The first is whether forces which were unable to agree upon a model of federalism in May would be able to do so now, given that positions in some cases have got more entrenched. This is especially true about the fate of six districts in Tarai, and names and boundaries of hill provinces. Deferring the federal issue is not acceptable to either the Madhesi or Janjati groups.
The second issue is whether a top level political deal will be acceptable to all the former CA members, who were resentful of being treated as rubber stamp. The process is as important as the outcome in constitution-making, and delegitimising it will sow seeds for a future conflict.
Third, the balance of power has changed not only since the 2008 CA elections, but also since the CA ended in May — new forces are outside the framework, and their buy-in would be important. Fourth is the internal dynamic within the NC. If one leader turns flexible on federalism since he sees a chance of becoming PM, the others turn rigid, making a deal difficult. And finally, the position of the Supreme Court will be critical. It was the judiciary which prohibited any further extension of the CA; whether they will allow it to be reinstated is open to question.
If despite these challenges, the parties are able to reach a broadly acceptable solution and meet the legal challenge, reinstatement and constitution promulgation would be ideal.
Otherwise, there is Option two: plan for fresh elections in April next year. This too requires broad political agreement on three issues.
The first is elections for what? Maoists, Madhesi and Janjatis have demanded a new CA, while sections in NC have said it must be for a new parliament. The compromise lies in polls for a CA-cum-Parliament. This however means that the problem seen in the last four years — of power games overshadowing constitution making since the same set of leaders was involved both in government formation as legislators and statute-drafters as CA members — will continue.
The second is the election system. There is a consensus that the last 601-member house was too large, and thus the numbers need to be reduced to a figure between 300 and 350. The exact proportion of first-past-the-post seats and share of Proportional Representation (PR) however needs to be agreed upon. Janjatis, Madhesis, Dalits and women gained representation through the PR mechanism, and need to be part of any deal.
And the third is an election under whom? While the NC has demanded leadership of the government claiming it is “their turn,” the ruling alliance has rejected this possibility. A compromise formula being floated is that the government could be headed by a “neutral” figure. Names of former Supreme Court judges, and some civil society leaders, have been thrown around. The problem however is that in a polarised society like Nepal, no one is quite seen as “neutral.” Whether a person without a political base would be able to enforce order in the run-up to what will be an emotive, identity-driven, and perhaps even violent election, is also uncertain.
The issues are complex and difficult, but it is time for Nepal’s political class to take a decision on either of the two options as soon as possible and give the country a clear political direction.
