Dancing by the cliff

There are less than three months left before the 28 May deadline for the promulgation of the new Nepali constitution. With the 601-member Constituent Assembly not having used the allotted two years for drafting the document efficiently, key constitutional as well as communitarian issues remain unresolved. The peace process hangs fire. At this juncture, there are two options: extend the deadline or convince the political parties to agree on a truncated 'framework constitution'. As the decision looms, there are widespread fears of anarchy, accompanied by a rightwing surge amidst the political polarisation and public frustration.

There are two main obstacles that stand in the way of the constitution-writing, and they have mainly to do with the distance between the Unified Communist Party of Nepal (Maoist) and the other political forces, in particular the CPN (Unified Marxist-Leninist) and the Nepali Congress. First, the peace process, which was supposed to have been successfully concluded before the new constitution was announced, is ongoing, with the 19,000-plus former Maoist combatants still in UN-supervised cantonments. Second, there are many areas of disagreements that the 11 committees of the Constituent Assembly have not been able to sort out, some of which go to the heart of whether Nepal is going to have a democratic constitution or a populist, unworkable document.

It is not as if Nepal does not have experience in constitutionalism. The 1990 Constitution was a quality document that restored sovereignty to the people after three decades of Panchayat rule, and guaranteed fundamental freedoms. That Constitution was overtaken by the conflict era, however, while its negatives (including the declaration of Nepal as a Hindu state, and the place of the monarchy) have been wiped away in the interim constitution. The goal of the present constitution-writing exercise is thus to put in place a democratic document while institutionalising a whole range of new elements, including republicanism, federalism, secularism and affirmative action.

The UCPN (Maoist) remains a party that is still transitioning into competitive politics, and so the obstacles its members have included, in the way of un-democratic provisions in the draft, need not be read as entirely prejudiced. Some of this may have to do with a simple lack of understanding of open society. As things stand, there are more than a hundred disagreements that have been passed on to the Constituent Assembly plenary by the various committees. But the main hurdles have to do with the Maoists' insistence on the judiciary being subservient to Parliament, their unwillingness to consider 'pluralism' within competitive politics, and the suggestion of a ban on the participation of political parties based on ideological grounds.

The most problematic presentation by the Maoists, however, has to do with the attempt to implement a federalism defined primarily on the basis of ethnicity and identity. Over the course of two centuries, Nepal has become a country of mixed habitation, where no community enjoys a majority anywhere, right down to the village level. Yet today there is a vociferous demand being made for 'ethnic federalism', replete with political prior rights ('agradhikar'). Even though there are those who discount the possibility of significant communal conflagration as a result of animosities aroused by the privileging of specific communities to the exclusion of others, the question is whether anyone in his right mind would want to dance so close to the edge of the cliff.

An opportunity?
As detailed in "Writer's block" in this issue of Himal, the Constituent Assembly's discussions on the matter of state 'restructuring' have been perfunctory. With so many issues pending, it seems impossible that the detailed constitution that is planned by the political players and expected by a large part of the populace can be written in the less than hundred days left. This is especially true given the polarisation between the political parties, as well as the angry watchdogging by the representatives of historically marginalised communities – who have begun to believe that the parties (including the Maoists) will not protect their interests. Perhaps the fact of the matter is that the dust simply has not settled enough amidst the myriad anxieties and challenges in Nepal for such a detailed constitution to be written. As such, those activist groups who insist on meeting the 28 May deadline may not be doing a favour to the polity, for the call should be the writing of a democratic constitution on time.

The Constituent Assembly, though inclusive and representative in its 601-person membership, has not yet seriously tackled the real matters of dissonance between the political parties and political philosophies. Yet now, this fact might be used as an opportunity, if those matters of disagreement were to be left 'pending'. A short 'framework constitution' can be written, which would then leave the details of governance to laws enacted by Parliament. This would still require an agreement on the form of governance – the presidential system favoured by the Maoists or the traditional Westminster-style prime-ministerial system, which is being backed by the Nepali Congress in particular. Beyond that, some of the stickiest issues would be set aside for serious discussion in commissions to be set up – the matters of demarcating, naming and determining the power arrangements of the federal state would be left to a commission of experts on state-restructuring.

Then again, with the chasm between the Maoists and the other political parties currently so wide and deep, even agreement on a truncated 'framework constitution' does not seem likely before the deadline is upon the polity. For the reasons given above, it is thus important for the main political parties to come together, to seriously consider extending the deadline of constitution-writing by six months or a year. This is crucial to ensure that a political vacuum is not created, which would drag the constitutional presidency of Ram Baran Yadav into controversy or, worse, give rise to countrywide violence that could get even the neighbours worried enough to push for a military-backed regime.

In this, however, the political parties cannot be seen to be extending the Assembly's lifespan – which is feasible under the interim constitution, incidentally – without doing any work. A vacuous extension would anger the populace and possibly invite anarchy into an already charged atmosphere. On the other hand, if the political parties are seen to be working seriously towards cantonment disbandment, and the establishment of a state-restructuring commission, perhaps there could be some trust. The Nepali populace is mature enough for the politicians to take them into their confidence.