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Nepal: A passage to democracy

By Bharat Bhushan: “A new Constituent Assembly is the only way for Nepal to consolidate the gains made after the democracy movement of 2006”
The intense fractiousness of Nepal’s political parties seems to have abated a little with political parties agreeing to form an election government headed by the Chief Justice of the Supreme Court. With this, the political impasse in Nepal seems to be breaking.
The non-Maoist political parties seem to have been united by the prospect of the ouster of Maoist Prime Minister Baburam Bhattarai. They were wary of an election under a Maoist government.
Ideally, each of the two big players — the Nepali Congress and the Communist Party of Nepal (United Marxist-Leninist) or CPN-UML — would have wanted a caretaker government under their own leadership. Because of Maoist opposition, they have had to settle for the next best option — a neutral caretaker election government of 11 technocrats headed by the Chief Justice, which would hold elections by June 5, 2013.
A new Constituent Assembly is the only way for Nepal to consolidate the gains made after the democracy movement of 2006. There have been significant achievements since then — abolition of the 240-year-old monarchy not through war, violent revolution or a coup d’etat, but peacefully through a Constituent Assembly; proclaiming Nepal a federal, democratic republic; declaring it a secular nation as opposed to a Hindu kingdom; and moving towards the reorganisation and restructuring of the Nepalese state so that all ethnic, linguistic and regional groups get a fair share of state power. None of these are small gains. But the aspirations of the Nepalese people cannot be formalised under a new Constitution till such a document is adopted by a Constituent Assembly.
The current political crisis began with the failure of the Constituent Assembly elected in April 2008 for a term of two years. After it extended its term four times, the Nepal Supreme Court ruled on May 24, 2012, that it could not be given another extension. Prime Minister Baburam Bhattarai dissolved the Assembly, which was also an interim Parliament, a few hours before its term was to run out on May 27, 2012. He then assumed the role of a caretaker Prime Minister.
The Opposition saw this as a Maoist power grab. Although he ratified the dissolution, the President saw the Bhattarai government as only a stop-gap arrangement. He asked the Nepalese political parties to reach a consensus on a caretaker national government, choose a Prime Minister and decide on an election date. Given the competing ambitions of political leaders, this proved daunting. Parties could not agree on the election government even after deliberating for eight months. A proposal that a civil society personality be made the head of an election government came to nought.
Then in the first week of February, at the seventh party convention of the United Communist Party of Nepal (Maoist), its chairman Prachanda, aka Pushpa Kamal Dahal, floated the proposal of setting up an election government under Chief Justice Khil Raj Regmi. The party endorsed it unanimously. Although the proposal had been rejected by the Nepali Congress and the CPN-UML earlier, these two parties endorsed it last week along with the Maoists and the Samyukta Loktantrik Madhesi Morcha (a front of parties from Nepal’s Terai region).
Those who remain opposed to the arrangement have complained of pressure from India. For example, the president of Nepali Congress, Sushil Kumar Koirala, who brings little to the job except his family name, claimed that he did not oppose the proposal, as that would invite pressure from a foreign power! His party, however, endorsed it.
The Nepali Congress and the CPN-UML then proposed a political advisory committee, hoping to exercise control through this over the government led by the Chief Justice. Sensing this, Chief Justice Regmi refused to head the government unless political and constitutional hurdles were removed for its formation. He also wanted provision for at least one extension of tenure beyond June 5 if elections to the new Constituent Assembly could not be held by that time, and an amendment to the Interim Constitution legitimising the election government led by him.
Legal hurdles may yet be thrown in his way. The political parties still have to pass the amendment of the Interim Constitution to allow an election government under the Chief Justice; in the absence of a Parliament, his name would have to be proposed by the political parties, and the legitimacy of the presidential ordinance to amend the Interim Constitution would have to be accepted.
Although the presidential ordinance can be passed under Article 158 of the Interim Constitution, which gives the Chief Justice “power to remove difficulties” in the formation of the Constitution, it must be endorsed by Parliament or Constituent Assembly within a month. As neither exists, the ordinance can be challenged in the Supreme Court. A legal challenge to the appointment of the Chief Justice as head of an election government is already scheduled for hearing on March 7.
Once the government is formed, it would have to face some other difficult issues relating to the process of elections. While the parties have agreed to use the voter lists of the 2008 election, these need modification to include those who have since reached the voting age of 18. Also, a large number of inhabitants of Nepal’s Terai have not as yet received citizenship certificates, and Madhesi parties are concerned that they would be disenfranchised.
Other challenges will come after the elections. The new Constituent Assembly will have to decide whether to continue with the consensus principle, which resulted in a stalemate, where everyone had to agree to every provision of the Constitution, or to go for the majority principle. It will have to decide on the principle of forming federal provinces — i.e. ethnicity versus geographical or other considerations. The judiciary itself will be a subject of debate as the Maoists want it to be accountable to Parliament while others uphold the principle of separation of the judiciary and the legislature. Nepal would also have to choose between a presidential and prime ministerial form of democracy.
These are stupendous tasks for a society transitioning from monarchy to a modern liberal democracy. Is the Nepalese political leadership up to the task?
Source: The Asian Age, The writer is a journalist based in New Delhi

Published Date: Tuesday, February 26th, 2013 | 03:53 PM

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