The problems of transition in Nepal

The interim government in Kathmandu risks becoming a mere caretaker administration in the absence of concrete movement towards a constituent assembly through the adoption of an interim constitution.

The present situation in Nepal is characterised by a paradox. The king has acknowledged the sovereignty of the people. The Maoists have proclaimed their commitment to a peaceful solution through the political process. The army has declared its loyalty to democratic forces. There is a broad consensus on the ultimate goals of society and state – sovereignty of the people; multiparty democracy, inclusive of all people, communities and regions; gender-equity; recognition of cultural diversity; rights for all, including minorities; social justice and the rule of law. All of these constitute a compelling vision of Nepal. Compared to many other countries that have suffered internal conflicts, Nepal is extremely well-placed to consolidate progress towards these goals.

The Seven Party Alliance (SPA), the Maoists, and the general public are agreed that the new constitutional and political order will be established through a constituent assembly (CA), composed on the principle of inclusiveness. The state would be restructured in a progressive manner through the constituent assembly, "resolving all problems including those related to class, caste, region and gender". Meanwhile, there would be an interim constitution to ensure democracy, peace and human rights. It would provide the basis for an interim government. The House of Representatives would be dissolved and replaced by alternative arrangements made through consensus. People's governments of the Maoists would be dissolved. Decisions on important national issues would be made through dialogue and consensus. The interim constitution would also specify the procedure for the convening and operation of the constituent assembly, including public participation through free and fair elections ("without any fear or threats and without being influenced by violence").

The paradox lies in the fact that despite agreement on the ultimate goals and this seemingly straightforward roadmap, hurdles have appeared as to its implementation. Difficulties arise in part from the ambitious scope of the interim constitution draft, which nevertheless leaves several critical and controversial issues to be resolved by the SPA and the Maoists. These include the nature of the state, the mode of election of the constituent assembly, and the composition of the interim legislature. It does not sufficiently address the problems of governance in the transitional period. In part, these difficulties arise from differences over the 'management of weapons' – particularly the Maoist arms – and from questions as to the conditions under which the Maoists can enter government and under which elections to the constituent assembly can legitimately be held

There are considerable risks and dangers if the stalemate is not speedily resolved. Sectarian interests will seek dominance over the national interest; parties will increasingly position themselves for the future, rather than try to solve present-day problems of transition; and there may be a reversion to the earlier conflict. Frustration will mount, and there will be further disillusionment with the political parties.

A major cause of stalemate is the lack of trust between the SPA and the Maoists, fuelled in part by some external actors. This mistrust is compounded by divisions within both the SPA and the Maoists, which prevent each from reaching out to the other. The interim period should be viewed as one in which trust is re-established – trust between the parties and the Maoists, and between the people and the government. In order to make democratic and participatory restructuring possible, certain changes in the way the state operates need to be carried out immediately. The worst examples of exclusion must be ended now. People must not be made to wait until there is a new Constitution to be recognised as citizens. Trust requires such recognition

The interim period is just that – it exists until the establishment of a new constitutional order under a permanent Constitution. This period is best conceived of as a transition leading to a new, definitive and comprehensive national settlement through the constituent assembly. What happens during this period must be primarily directed towards a successful achievement of that new order. This is also very important in connection to trust – particularly that of the people, who need to see a clear timetable. Otherwise there will be anxiety that the Jana Andolan – the People's Movement of April – is in danger of being hijacked.

The interim period is not a time for a radical restructuring of the state. No institution that exists now or that can be established through the interim constitution will have the mandate to carry out such a task. The restructuring of the state is the prerogative of the people in the exercise of their sovereignty. Radical change is likely to be controversial; controversy threatens the fulfilment of the settlement as it may aggravate differences and increase tensions.

The interim needs

The interim constitution was intended to accelerate progress on the political and peace processes. It was to open the way for the inclusion of the Maoists in the executive branch and the legislature, establish the government for the period until the adoption of the permanent Constitution, and provide the framework for the creation of that Constitution through a constituent assembly.

One trouble with the draft of the interim constitution is that the drafting committee did not pay as much attention to the issues Nepal faces in the run up to the constituent assembly as it did to the structure and functions of the interim institutions. It saw too large a role for the interim constitution, and tried to cover a number of controversial matters that should have been left to the constituent assembly. It tried to implement an ambitious reform agenda more suitable for a constituent assembly with the people's mandate than for political bodies (selected by the political parties, including the Maoists) with less than universal legitimacy. It also tried to do this through a process in which there was no participation of the people in the decision-making.

Many of the issues the drafting committee dealt with require considerably more research and consensus-building than was possible in the short time it had – issues such as the choice of electoral system, between federalism, autonomy or unitary state, and the procedure for the creation of the new Constitution. The approach the drafting committee adopted with respect to the monarchy – leaving its status to be decided by the people in a referendum – is better, although with regard to other issues the constituent assembly would be the better institution to make decisions. The draft also raised unnecessary controversies by proposing the dismissal of court judges and members of other independent institutions, and has not demonstrated sufficient regard for due process and the rule of law.

It is necessary to re-think the purpose of the interim constitution in light of the nature of the interim period. The focus should be on three issues: the arrangements for government for the next 24 months or longer until the new Constitution is made; ensuring accountability and respect for rights and democracy; and the drawing of the roadmap to the constituent assembly, and the making of the new Constitution.

On the first issue, these arrangements must take into account that the government will be a coalition – with perhaps some non-party members – which must operate on the principle of dialogue and consensus. The familiar 'Westminster' majoritarian principle underlying the draft interim constitution is not suitable, and could cause major difficulties. The interim constitution seems to assume that the prime minister would consult with other parties when forming the government. It would be desirable, however, for it to specifically state not only that the government would be a coalition between the SPA and the Maoists but also that the prime minister would consult with the SPA and the Maoists on its formation.

The position of the prime minister should be made less dominant than it is in the draft. The draft gives the PM some of the erstwhile powers of the monarch in addition to those traditional for the head of government; whereas it would be appropriate to give him or her less power than is often found, and to emphasise the collective nature of the cabinet. Creating too powerful a prime ministerial office could trigger divisive and disruptive competition for the post. It would be desirable for the SPA and the Maoists to enter into an agreement on the modalities of decision-making in the government, so as to avoid future disputes.

The primary responsibility of the interim government and legislature would be to facilitate and expedite the constitution-making process, and to undertake making only such legislation as is absolutely necessary, especially to facilitate the constitution-making process itself. One example of necessary legislation would be that dealing with the matter of citizenship. The interim government must re-establish law and order, and rights must be respected. If these things are not done, its role would be reduced to that of a caretaker government. The role of the courts must also be clear, and their independence assured. Other accountability institutions – such as the office of the auditor-general and the authority for investigating abuse of office – must be in operation, and the legislature should play an important part in ensuring transparency and accountability in government.

Principles and institutions

The interim constitution must guarantee the convening of the constituent assembly. It needs a strong and clear chapter on the constitution-making process, with binding principles, an agenda for the constituent assembly and, perhaps most importantly, timeframes. Here the draft says too much on some matters and not enough on others. It goes too far in dictating the makeup of the body and its decision-making processes, but fails to give a clear timeline.

In brief, there should be a deadline for holding the election or selection process for the constituent assembly. Its composition should not be prescribed, but the principles for representation should ensure the inclusion of 33 percent women members, and proportionate members for other communities. Rules for decision-making should not be made, but some guiding principles should be set – to start with, the bedrock necessity of producing agreement.

It is also advisable that there be a wider and clearer role for what the draft constitution calls the 'Constituent Assembly Public Awareness Committee'. In addition to educating people and seeking their views for transmission to the constituent assembly, it should be specified that such a committee should work those views into a set of proposals to form the very foundation for deliberations in the constituent assembly. The committee's first important task would be to make recommendations as to the format of the constitution-making process – including various functions of the assembly – on the basis of appropriate consultations with the people.

There is a great danger that the SPA and the Maoists will soon take matters into their own hands and attempt to make their own decisions – this at a time when people are beginning to debate the best form of the constituent assembly, and when their views should be collected and incorporated into the process of preparation. A broad agreement on this process is a pre-condition of its success, and a guarantee of people's participation in the political processes that will follow.

The advantage of the early establishment of the Committee on Public awareness is that it can swing into action even before the difficult questions facing the late September summit (between the SPA and the Maoists) on political process and weapons are resolved. This will be reassuring to the Nepali people, who are beginning to wonder whether there will ever in fact be a constituent assembly. The interim constitution should set out fundamental principles for the new Constitution, based on the eight-point and 12-point agreements between the SPA and the Maoists. This would not usurp the functions of the constituent assembly, and would reassure the people that things are on track for the creation of a truly democratic Constitution.

The drafting committee has not proposed a method for the formal adoption of the interim draft. Not only are the political parties divided on the subject, the method of adoption also has profound implications for the legality and legitimacy of the Constitution itself. It is more than likely that the legality of the new Constitution will be challenged in terms of both procedure and substance, as it will not be adopted fully in accordance with the 1990 Constitution –it will be adopted, that is, without the participation of the second chamber or the approval of the king, and with the derogation of some especially entrenched principles of the preamble.

It is true that the drafting committee may not be able to do much about this. Being a committee of lawyers giving careful consideration to the kinds of issues courts take into account when deciding questions of legality in similar situations, however, they should have come up with a firm proposal as to how to deal with the issue. Since the adoption by the House of Representatives would inevitably require scrutiny of the amendment procedures of the 1990 Constitution, it would be best to base both the legitimacy and legality of the interim constitution not on that document but on the people's sovereignty – through a representative assembly of parties, Maoists and civil society. The preamble of the interim constitution should recite the circumstances that led to its adoption, emphasising the people's sovereignty and the necessity of a new constitutional order.

The implementation of these constitutional suggestions will not be effective without the satisfactory resolution of the weapons question, and the exercise of good leadership. The former, coupled with the question of the eventual integration of the various armed forces, has to be handled together with political issues and in a manner both principled and flexible, so that linkages can be established between progress on the fronts of the political agenda and of weapons management. There are lessons to be learned from the debacle in Iraq that followed the senseless decision to disband the existing army wholesale. The management of weapons and of armed forces, together with other issues of transition, will require a leadership with vision and determination.   Many a country with prospects of peace, democracy and justice as promising as in Nepal today have squandered the opportunity for lack of such vision, or for the selfishness or timidity of their politicians. If Nepal falters, a large measure of responsibility for the failure will lie with its political leaders.

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Himal Southasian