By Fakir Mohan Pradhan
Deadlines mean little to Nepali leaders. Having failed to draft a Constitution after four extensions for the Constituent Assembly (CA) before its dissolution, other things can certainly wait. The July 22, 2012, deadline set by the Election Commission (EC) to clear the legal hurdles to facilitate the Constituent Assembly polls on November 22 was, in any event, far to knotty a problem to be resolved by the Baburam Bhattarai-led caretaker Government. The EC had no option but to extend the deadline by another few days (five to nine days) after Pushpa Kamal Dahal aka Prachanda [Unified Communist Party of Nepal-Maoist (UCPN-M)], Ramchandra Poudel [Nepali Congress (NC)] and Jhalanath Khanal Dahal [Communist Party of Nepal-Unified Marxist Leninist (CPN-UML)] told the EC during a meeting on July 22 that they would try to forge a consensus “at the earliest”.
Bhattarai had announced the dissolution of the CA on May 27, 2012, after a failure to secure consensus on the issue of “ethnic federalism”, and after the Supreme Court (SC) refused to allow further extensions to the CA. The date for fresh elections to the CA was announced simultaneously. At that point, it was difficult to imagine that this process would itself become embroiled in inflexible legal hurdles. A High Level Committee, led by a Member of the EC, which reviewed the relevant election-related provisions in the Interim-Constitution and other Acts, concluded on June 15 that fresh CA polls could not be conducted, without first amending the Interim Constitution and some election laws. It had not occurred to anyone during the framing of the interim-Constitution that the CA could fail in its task, and that another CA may be required. The Interim Constitution, consequently, has no provision for a second CA election. However, since the CA has now ceased to exist, there is no available mechanism for the amendment of the Interim Constitution and the relevant Acts. Bhattarai is now receiving flack for having failed to secure the amendments before announcing the dissolution of the CA, but that moment has already passed. The High Level Committee now feels that there is no alternative to amending the Interim Constitution through an ordinance by the President, exercising his discretionary powers, though it remains uncertain whether there is any example in the world of a constitutional amendment by an ordinance. A member of the Committee is reported to have conceded that such a step would surely be undemocratic, but that the President could use his powers on the basis of a broad national consensus.
As a result, the EC put the ball in Government’s court on June 20, arguing that, since it needed 120 clear days to organize the polls, the Government must clear all legal roadblocks by July 22.
A range of contentious legal positions has, thereafter, emerged. One opinion is that CA election can be held on the scheduled date without amending the Interim Constitution, in compliance to the SC judgment, as it was a Supreme Court verdict that had put a final cap on the CA’s term. Other poll related Acts could be amended through a Presidential ordinance on the recommendation of the Cabinet. This position is contested on the grounds that the Cabinet cannot make such a recommendation, as it draws its legitimacy and power from the CA, which now stands dissolved. A third position argues that CA polls could be held by forging a consensus among the political parties, and this agreement could be endorsed later by the new Parliament or CA.
The legal conundrum is compounded further by the fact that, while the acting Chairman of the EC, Neel Kantha Uprety’s term expires in November 2012, two other commissioners, Ayodho Prasad Yadav and Dolakh Bahadur Gurung, retire on January 11, 2013. If the CA election is not completed before the end of these terms, the legality of the position of the EC members would come under question. Further, new appointments would not be possible, as the EC members are appointed by the Prime Minister on the recommendation of the Constitutional Council.
Given the mounting complexities, there is an insistent clamour for ‘political consensus’, but, given Nepal’s fractured and fractious polity, an agreement is nowhere in sight.
The Nepali Congress and the CPN-UML remain adamant that they cannot participate in CA elections if these are held in November, under the Bhattarai-led Government of UCPN-M and the United Madheshi Democratic Front (UDMF), which they deem ‘unconstitutional’. They insist that Bhattarai must first resign to make way for a ‘national unity government’. Bhattarai, however, continues to insist that he would hand over the reins of Government only to an elected government. Indeed, a ‘political paper’ presented by UCPN-M Chairman Prachanda in the 7th plenum of the Party, which commenced on July 17, argues that leaving the Government without securing an agreement on contentious issues of the new constitution will be ‘suicidal’ for the party.
As the deadlock persists, all sorts of ‘solutions’, including the revival of the old CA, a ‘national convention’, and elections for a new Parliament that could then approve a constitution, are being proposed, creating greater confusion, rather than any clarity. If the old CA can be revived, what was the need to dissolve it? How can a parliament write a constitution? And if elections can be held, why not for a CA instead of a Parliament? Moreover, on July 18, 2012, CPN-UML formally adopted the stand that the demand for revival of the dissolved CA was “inappropriate”. Instead, the party opted for a fresh mandate to complete the remaining tasks of maintaining peace and writing the constitution. The party, however, reiterated its position, stating that it would not be part of any fresh CA elections under Prime Minister Bhattarai.
Within this constitutional and legal mess, however, it is heartening to recognize that, despite all sorts of questions regarding the Bhattarai-led Government’s legitimacy and intentions, there has been no collapse of governance. Indeed, Nepal, today, remains relatively calmer than most people expected. The much-expected power tussle between the President and the Prime Minister has not taken place. The President has not questioned the legitimacy of the Government. The Government, avoiding any showdown, recently opted to present a ‘one-third budget’, though it had earlier insisted on a full budget. Opposition parties – UML and NC – have not resorted to disruption and violence in voicing their opposition to the Government. The pro-ethnicity-based federalism demonstrations during the last days of the CA almost ended with the demise of the CA.
These signs are being misread by some commentators as evidence of growing maturity in Nepali Politics, though they are, more likely, a process of realignment with new realities. Neither the UML nor the NC can match the Maoists in street violence, and both these parties remain unsure about their electoral prospects, given their opposition to ethnicity-based federalism and the growing enthusiasm among janajatis, dalits and Madhesis for such a structure.
But the problem with this model of federalism is not simply the difficulty of creating 10, 11 or 14 ethnicity-based federal states; the greater problem is that, beyond the number or names of the proposed states, no further details regarding the distribution of powers and functions have even been debated. In the absence of any clarity, enthusiasts are articulating their own divergent and imaginary provisions, raising expectations that are unlikely to be fulfilled, and setting the stage for disappointment and escalating friction. On June 12, 2012, the Nepal Army disposed of an improvised explosive device (IED) placed in Dhangadhi (Kailali District) where a pamphlet issued by little known “Seti-Mahakali Khaptad Tahalka Jamamukti Killer Party (Seti-Mahakali Khaptad Tahalka People’s Liberation Killer Party)” was discovered. In the pamphlet, the group claimed to have launched a campaign against those attempting to re-instate the monarchy and so-called ‘anti-federalism groups’ that contributed to the dissolution of CA by supporting an Undivided Far West or Undivided Mid West.
The clamour for political consensus is, indeed, progressively exposing the hollowness of Nepali politics. The demand for political consensus appears to be limited to the formation of a ‘Unity Government’ till the next election. Difficult issues, including the contours of the proposed federal structure are not getting the due attention. The most likely beneficiary of this political incoherence, the UCPN-M, is itself busy taming factionalism within the party, which came out in the open at the Seventh Plenum. The two other parties NC and UML, are finding it difficult to even ask janajati workers of their parties to toe the party line. On July 18, 2012, the CPN-UML relieved around a dozen janajati leaders of their responsibilities on grounds of their “non-compliance with the party’s official position on federalism” and for remaining absent from party meetings for an extended period. The leaders facing action include Vice-chairperson Ashok Rai, Politburo members Prithivi Subba Gurung, Bijay Subba Gurung, Kiran Gurung, Rakam Chemjong and Central Committee member Jeevan Ram Shrestha.
While the Maoists are sitting pretty in the Government, approaching the next election – whenever it is conducted – from a position of clear advantage, the NC and UML, are increasingly looking like the defenders of numerically weak but otherwise powerful Bahuns and Chhetris [Brahmins and Kshatriyas], a perception that will lose them further ground, as the Maoists are seen as champions of the ethnicity cause. While partisan equations shift, identity politics is taking deep roots in Nepal, raising the spectre of future conflicts along ethnic lines.
Fakir Mohan Pradhan
Research Associate, Institute for Conflict Management