New Delhi should continue to encourage all political forces to stay the course in drafting a federal, democratic republican Constitution
A month after Nepal’s Constituent Assembly (CA) ‘automatically ended,’ owing to a judicial stricture, without delivering a constitution, the country is in a deep political crisis. The Baburam Bhattarai-led government has called for elections for a new CA, and the Prime Minister has said he would hand over power to a new elected government. The Opposition, led by the Nepali Congress (NC) and Communist Party of Nepal (Unified Marxist Leninist), has termed the government’s decision ‘unconstitutional,’ and demanded the PM’s immediate resignation.
The interim Constitution did not envisage a situation where the CA would fail. It neither has provisions for a second CA poll, nor offers any other alternative. Since there is no Parliament, the interim statute cannot be amended through normal processes — except if President Ram Baran Yadav, on the recommendation of the cabinet, uses his constitutional power to ‘remove obstacles.’ But he has said he will exercise this on the basis of a political ‘consensus.’ Given the divergence between the ruling Maoists-Madhesi front and NC-UML about the status of the government and future road map, this consensus is elusive.
There are multiple variables which will shape politics in the months to come.
The first is the direction Maoist chairman, Pushpa Kamal Dahal ‘Prachanda,’ decides to take, and his relations with the PM. The fact that he did not compromise on identity-based federalism on the final day of the CA allows Mr. Prachanda to project himself as the champion of the marginalised, and create the basis for stitching an alliance with Madhesi parties and Janjati leaders. In the long run, this may be a political masterstroke. But in the short-term, the CA’s dissolution has been a major political setback. His party has split. The ultra left’s key criticism is that Mr. Prachanda gave up the People’s Liberation Army (PLA), compromised on ‘national independence’ by cultivating close ties with India, gave up ‘progressive’ issues, yet failed to get a constitution. Mr. Prachanda’s personal ambition of becoming Nepal’s first directly elected President has got indefinitely delayed. And the Maoist agenda of promulgating a federal democratic republican constitution through the CA is on the back-burner.
Mr. Prachanda and PM Bhattarai, who share a competitive-collaborative relationship, do not seem to be on the same page. While the PM has ruled out his resignation, Mr Prachanda has been more flexible on giving way to an NC-led unity government. His preferred road map is an agreement on federalism, reinstatement of the CA, promulgation of the Constitution through the CA, and then fresh elections. The party chairman sees this as the quickest way to safeguard the work of the CA, as well as create the basis where he can advance his own ambitions. On the other hand, the PM told The Hindu in early June that reinstatement would neither have public or constitutional legitimacy, dismissed the idea as ‘absurd’ and pushed for elections. In recent days though, he has said that he is open to the possibility, provided this is legally acceptable.
The second variable is the realignments in all parties. Besides the Maoists, the biggest Madhesi party has also split. There is deep discontent among the Janjati and Madhesi leaders of the UML who have threatened to walk out if the party does not accept identity-based federalism. Different factions within the main parties have different prescriptions depending on what would benefit them.
So the new Maoist party led by Mohan Vaidya ‘Kiran’ has asked for a ‘roundtable conference’ of all forces — other parties see this as a possible entry point for royalists and dismiss it as impractical. Leaders within NC and UML have floated the idea of a constitution by a commission of experts — but Maoists, Madhesis and ethnic groups see this as a pretext to push a statute by technocrats ignoring popular demands. Other former lawmakers in both the UML and NC have asked for the reinstatement of the CA; on Sunday, party president Sushil Koirala has said this could be considered for a short period of time. And then there are calls for a referendum on contentious issues. The fragmentation of the political landscape makes a consensus more difficult, though many forces seem to be converging towards the idea of the revival of the CA.
Presidency and Supreme Court
The third variable is the role of constitutional institutions, like presidency and court. The opposition, led by the NC and UML, has been urging President Ram Baran Yadav to dismiss the PM and call for a national consensus government. This would be, as a commentator recently put it, a ‘mockery of constitutionalism’ as the interim constitution sees the head of the state as a strictly ceremonial position.
A former NC politician, Dr. Yadav has however emerged as a parallel power centre. In the absence of a legislature, the government needs him to promulgate through ordinance all key policy measures — be it the budget, or amendment of election laws to make new polls feasible. The President’s insistence on a political consensus first, and the inability of the political class to come up with such a consensus, has paralysed decision-making. The President’s aides have said he does not have the constitutional basis to do more than appeal for consensus. But there is speculation that when it becomes clear, elections in November are not possible, the President may act against the government. This will end up creating a new political conflict as the ruling alliance is sure to resist any kind of presidential intervention.
Like in Pakistan, the Supreme Court has emerged as a key swing force in Nepali politics. Its decision prohibiting further extensions of the CA led to the institution’s demise. There is now a petition in the court challenging the government’s decision to call for fresh CA elections. What the SC says in the matter will either boost the government’s legitimacy, or undermine it. The SC’s position on CA revival will be crucial as well.
And the final variable will be the role of India. While conspiracy theorists in Kathmandu have blamed South Block for the current crisis, this is one of the rare instances when India has actually stayed out and let the Nepali political process take its own course. Delhi recognises that a consensus between at least the four major forces — Maoists, NC, UML, and Madhesi Front — is necessary to break the impasse but has refrained from offering specific prescriptions.
In the months ahead, all Nepali forces will step up their lobbying with the Indian establishment to back their partisan agendas. What India says privately about the composition of the government, presidential activism, and the way forward will tilt the balance. Any specific Indian action, or even inaction, will have major implications. Delhi should recognise that politics in Nepal has fundamentally changed. Newer social forces are asserting themselves, and there is no short-cut to this nation-building process. To its credit, India has so far resisted pleas by Nepali conservatives to help turn the clock back — either by reviving the 1990 constitution, or supporting a military backed presidential coup. These moves are neither sustainable nor offer a solution; it will only deepen the conflict, and alienate subaltern groups who are using the democratic space to assert themselves. Messy as it may be, Delhi should stay the course in supporting Nepal’s stated agenda of drafting a federal, inclusive, democratic republican constitution by the CA. This is the only route to a stable and prosperous Nepal which is sensitive to Indian interests.
India will have to encourage different forces to pull back if a situation of a confrontation arises, and play the role of a facilitator — as it had done during the 12 point understanding of 2005 which led to the rapprochement between political parties and Maoists and brought politics so far. A new broad-based political agreement with three elements — protecting the work of the old CA, determining the way forward through new elections or CA’s reinstatement, and power sharing – is the only way out now.