By Ajit Kumar Singh
Parliament passed the Ninth Amendment to the Interim Constitution in the morning of May 29, 2011, to extend the Constituent Assembly (CA) by another three months, changing the language of Article 64 to state that “the term of CA will be three years and three months from the date of its first meeting.” The Amendment came after an extended crisis which threatened to pull down the fragile constitutional structure that has been established in this long-troubled country.
On May 12, 2011, the Government registered a proposal in Parliament to amend the Interim Constitution and extend the tenure of the CA by one year. On May 25, however, the Supreme Court (SC) ruled out the extension of the CA term, except under a state of emergency or some other special circumstances, according to the doctrine of necessity, and for no more than six months. Issuing the final verdict, the SC stated, “Since the CA tenure cannot be extended for more than six months as per the restrictive clause of Article 64 of the Interim Constitution during state of emergency, it is wrong to extend the tenure for more than six months in normal situation (sic).” It even overruled the November 4, 2010, verdict issued by a three-member Special Bench of the Court, which had allowed the extension of the tenure of the CA ‘until promulgation of the Constitution’.
This is the second time the CA’s term has been extended. Initially elected for a period of two years in 2008, the CA was extended for a period of one year on May 28, 2010, by an amendment of the original provision of Article 64. Political parties sought a further extension as the task of drafting of the Constitution is still to be completed.
The current extension became possible only after a five-point agreement among the three largest political parties in the CA – the Unified Communist Party of Nepal-Maoist (UCPN-M), Nepali Congress (NC) and Communist Party of Nepal – Unified Marxist Leninist (CPN-UML). The agreement includes the following:
- Completion of fundamentals of the peace process within three months
- Preparation of the first draft of the new Constitution within three months
- Implementation of past agreements with the Madheshi Morcha by developing the Nepal Army as an inclusive institution
- Extension of the Constituent Assembly term by three months
- Prime Minister (PM) Jhalanath Khanal’s resignation to pave way for formation of a national consensus Government
Later, on May 30, UCPN-M chairman Pushpa Kamal Dahal aka Prachanda stated that the extended three-month period of the CA was the “biggest test” for the political parties and people, and observed, “But we averted a big accident that was about to happen in the nation.” However, the divided political spectrum of the country, compounded by a worsening security situation, suggests that, though the ‘accident has been averted’, there is no end to such conditions arising again in days to come.
To start with, even the implementation of five-point agreement will be a real hurdle. While, the fourth condition has already been fulfilled, none of the other conditions are likely to be met within the stipulated time frame as there is no majority consensus for any of the points to be implemented. The formation of a national consensus Government can only prove to be a real ordeal. During first extension of the CA’s term on May 28, 2010, the leaders of these three large parties had struck a deal according to which then Prime Minister Madhav Kumar Nepal was to tender his resignation ‘at an appropriate time’ to pave the way for the formation of a ‘consensus Government’. Nepal took seven months to find an ‘appropriate time’ for his resignation, and the national consensus Government remained a chimera.
Crucially, major contentious issues continue to trouble the political class, blocking the drafting of the Constitution and the resolution of major differences. Despite the Maoists agreement in principal to the Nepal Army’s model of integration of People’s Liberation Army (PLA) cadres, sharp division among parties remain on the number of Maoists to be integrated. Reports indicate that, while the Maoists are now demanding the integration of some 7,000 PLA combatants, the NC and other political parties are adamant upon limiting the maximum number to 5,000. Significantly, more than 19,000 Maoist ‘combatants’ staying in seven major and 21 satellite camps across the country are awaiting integration or rehabilitation, though allegations regarding the inclusion of a large number of ineligible persons are widespread.
The surrender of arms by the Maoists is another bone of contention. Despite all the political parties urging the Maoists to give up arms, the Maoists remain wary. On May 27, 2011, Dahal, ruling out the surrender of PLA weapons to the state authority, noted that the process would be “illogical and immature”. “We won’t surrender. If needed we are ready to become martyrs instead,” he declared. However, on June 4, Barshaman Pun, member of the Special Committee for Supervision, Integration and Rehabilitation of Maoist combatants, disclosed, “We have begun collecting weapons and have kept them at the Nayabazaar-based residence of Chairman Pushpa Kamal Dahal ‘Prachanda’ and the process of returning PLA security personnel to their respective camps will begin from Sunday [June 5].”
Endorsement of the Constitution by a two-thirds majority is another hopeless talk under the prevailing circumstances. Barring, Madheshi Janadhikar Forum-Nepal (MJF-N), which is a part of the ruling alliance, all other Madhesh based parties, along with NC, have said they will not accept a Constitution promulgated by a two-thirds majority, while the Maoists and CPN-UML are pushing for this outcome. These parties are insisting on promulgation of the Constitution by consensus alone.
Evidently, continuing inter-party rivalry remains a major obstacle. Worse, there has been a significant rise in intra-party rivalry as well. The Maoists appear to be a progressively divided house. The faction led by Vice Chairman Mohan Baidya has disowned the five-point agreement, declaring that the pact was against the party’s official policy, endorsed by the Central Committee (CC). The political report presented by Baidya in the CC meeting that concluded on April 30 noted, “The People’s Constitution writing process and Army Integration should go hand in hand and the present Government should be continued.” Similar divisions are evident among the leaders of the CPN-UML. Pradip Nepal, Politburo member of the party claimed, on May 11, that the Prime Minister had become “half Maoist” already. Further, senior CPN-UML leader K. P. Oli accused both Khanal and Prachanda of running the show in the country by hatching conspiracies.
Chaotic political conditions have contributed to a deteriorating security scenario. Regular reports of clashes among the cadres of the different political parties have been received. In a recent incident, a group of 60 UCPN-M cadres from the Chulachuli-based PLA First Division Camp of Ilam attacked local people in Kamal Jhoda, injuring at least 12, and ‘capturing’ five others in the night of May 16, 2011. The NC claimed that the people attacked and ‘captured’ were its party cadres. Moreover, normal life is repeatedly paralyzed due to near-continuous shutdowns imposed by various political as well as armed outfits. While the whole of Terai is simmering, the capital, Kathmandu, is also in the line of fire. Significantly, on April 7, Police arrested five senior cadres of the Communist Party of Nepal (People’s Revolutionary), an underground armed group, from Baluwatar in Kathmandu and Jagati in Bhaktapur District. Police disclosed that the arrested persons were holding a meeting and making plans to bomb several places in the Kathmandu Valley.
Nevertheless, there have been several positive developments in the recent past, as well. The sub-committee, headed by Prachanda, formed under the Constitutional Committee, on May 19, 2011, resolved eight disputes surrounding the draft Constitution, including its name. A meeting of the Sub-committee decided to name the statute the ‘Constitution of Nepal’. There had been six disputes over the name. The Sub-committee also decided to forgo any mention of the Maoist combatants vis-a-vis the peace process in the Constitution. Similarly, the panel also decided to incorporate the clauses of fundamental rights within the Directive Principles of the State. Again on May 20, the Sub-committee agreed not to include the provision of compulsory military training to citizens above 18 years of age in the new Constitution. The sub-committee is yet to resolve another 21 disputes, including the system of governance, restructuring of the state, and the electoral system.
Further, on May 28, despite strong reservations from the Madhesh-based parties, the UCPN-M, NC and CPN-UML agreed, for the second time, to form a high-level State Restructuring Commission. The Commission, which will comprise of experts picked by the parties, is expected to recommend a viable model and number of federal provinces to be established in the Federal Democratic Republic of Nepal. Later, on May 31, these parties, informally agreed on two other issues — ending dual security, by the State and the PLA, being provided to Maoist leaders ‘within a week’ and issuing a progress report or ‘white paper’ incorporating all contentious issues pertaining to the Constitution drafting process. The ‘white paper’ will be unveiled in the CA, CPN-UML leader Pradeep Gyawali disclosed. Significantly, on June 5, UCPN-M formally began the process of sending PLA combatants deployed for the security of Maoist leaders to the cantonments. 48 PLA combatants were deployed for the security of different Maoist leaders under the leadership of ‘division commander’ Santu Darai.
Speaking of these developments on May 25, UCPN-M leader Dahal noted that there was a wrong impression among the people that the ongoing Constitution drafting and peace processes were not moving forward, but the fact was that more than 250 disputed issues had been reduced to a mere 21. The ability of the political parties to effectively monitor the peace process after UNMIN’s departure and the PLA being brought under the jurisdiction of the Army Integration Special Committee have demonstrated notable achievements and progress in the peace process. Similarly, Prime Minister Jhala Nath Khanal, in his televised address to the nation on May 31, observed that the parties had already finalized several pending issues concerning the new Constitution and that ‘something significant’ could be expected in the peace process in a few weeks time. In another major development, it has been announced that Nepal will be declared a mine-free country by mid-June.
Despite these positives, uncertainty continues to loom large in this nascent Himalayan democracy. The big question is, what would happen if the Maoists came to lead the Government? The CPN-UML CC meeting on June 2, 2011, declared, “Our plan is that the national unity Government will be installed by June 29 and the UCPN-M will lead that Government.”
Given the Maoists track record in Government, their restoration to power may, once again, prove to be a polarizing factor. The Ministry of Home Affairs, currently headed by Maoist Krishna Bahadur Mahara, has been working at full swing to withdraw criminal cases against Maoist cadres charged with various offences — including serious crimes dating back to the period of insurgency. According to senior Home Ministry officials, Mahara has been asking them to expedite compilation of a list of cases registered against Maoist cadres from courts across the country. This is not the first time that the Maoist leadership has tried to get their party workers off the hook. In October 2008, the Maoist-led Government withdrew 349 criminal cases against its cadres, according to official records.
Tremendous gains have certainly been secured since the bloodshed of the insurgency ended, and the absolute decline in political violence in the country is one of the most significant among these. Residual difficulties remain, of course, and there is a lingering danger that extremists in one political formation or another will be tempted to slide into another sanguinary adventure. Despite the enormous political difficulties that persist, and the absence of coherent governance over vast areas of the country, however, the flexibility and accommodation of divergent political parties in Nepal, and the persistence of the peace process, continues to surprise many. Nepal remains troubled, unstable, and sometimes violent, but a fledgling democracy appears to be taking root, and no political party has any presently overriding interest in jeopardizing this.
Ajit Kumar Singh
Research Fellow, Institute for Conflict Management