Nepal: So Near, Yet So Far – Analysis -By Ajit Kumar Singh
With the major parties – Unified Communist Party of Nepal-Maoist (UCPN-M), Communist Party of Nepal-Unified Marxist Leninist (CPN-UML), Nepali Congress (NC) and the United Democratic Madheshi Front (UDMF) – failing to reach consensus on just a few unresolved issues on the Draft Constitution, particularly on the restructuring of the state, the final stipulated deadline, May 27, 2012, came and went. The existing Constituent Assembly (CA) has now become defunct. Indeed, almost all the contentious issues, most prominently including the integration of People’s Liberation Army (PLA) cadres into the Nepal Army, had already been resolved.
The 601-member CA, elected in 2008, had been mandated to complete the task of Constitution writing within two years, and to oversee the peace process that began when the conflict ended in 2006. Since then, the major parties reached a number of opportunistic agreements, to keep a tenuous peace process alive, and amended the Interim Constitution, to extend their own mandate beyond the stipulated two year deadline, on four occasions. Following this pattern, on May 22, 2012, the UCPN-M led National Unity Government registered the 13th Constitution Amendment Bill in Parliament, to pave the way for a further three month extension of the CA’s term, in complete disregard of the Supreme Court’s (SC) November 25, 2011, verdict, which stipulated that the CA’s term was being extended for the last time, and the body would cease to exist if the Constitution was not promulgated within the extended term. In its verdict the SC had also asked the defendants to decide the duration of the extension, after determining whether the Constitution would be promulgated through a referendum, or to elect new CA, if the current CA failed in its task. Not surprisingly, on May 24, 2012, the SC, responding to the writs filed against the Government’s move to seek a further extension for the CA, issued a ruling directing the Government not to proceed with the Amendment to further extend the CA’s term.
In a last bid to salvage the CA, on May 25, 2012, the major parties reportedly agreed to promulgate the Constitution by May 27, 2012, while leaving residual disputed issues for the “transformed legislature parliament” to resolve. According to the agreement reached, the draft of the Constitution was to be issued by the CA within the May 27, 2012, deadline, and the parties would agree on the names and the number of Provinces before that.
Regrettably, however, no consensus could be arrived at on the demarcation of Provinces. With no other legal alternative at hand, on May 28, 2012, the Government called for elections to a new CA. Prime Minister (PM) Baburam Bhattarai declared, “We have no other option but to go back to the people and elect a new Assembly to write the Constitution. Though we were unable to promulgate the constitution, we have decided to seek a mandate through elections for a new Constituent Assembly on November 22.” The PM stated, further, that he would be leading a caretaker Government until the elections scheduled for November 22, 2012.
Meanwhile, the NC, the CPN-UML, and some fringe parties, rejected the Government’s decision to hold fresh elections, and called for public protests. The leaders of these parties met President Ram Baran Yadav and urged him not to approve the ‘unconstitutional decision’ of the Government. NC leader Ram Chandra Poudel claimed, “This is part of a Maoist plan to capture power.” Senior CPN-UML leader Bhim Rawal stated that the PM’s move was a breach of constitutional provisions, as there was no provision in the Interim Constitution to hold another CA polls. “We are not opposed to going to the polls, but we cannot endorse the Prime Minister’s unilateral move that violates the constitutional provision,” he argued. “The Prime Minister should have made an attempt to amend the provision of the Constitution before announcing the fresh election by forging consensus,” he pointed out.
The CPN-UML vice chairperson Bidhya Bhandari stated, on May 28, 2012, that her party was no more a part of the Government. Earlier, on May 25, 2012, the NC had withdrawn from the Government, opposing the Government’s May 22 decision to register the 13th Constitution Amendment Bill in Parliament, to pave the way for a further three months extension of the CA’s term.
The National Unity Government had been formed on May 5, 2012. While the NC joined the Government on May 6, the CPN-UML, after initial opposition, joined on May 16. Significantly, the National Unity Government was constituted after a Five Point agreement reached between the major parties on May 3, 2012, which stated:
All members of the incumbent Cabinet will resign and a new Unity Government will be formed within two days, as per the earlier seven point agreement.
All issues of Constitution drafting, including the state restructuring, form of governance, etc., will be resolved in three days.
A new Statute for the Constitution will be promulgated before May 27. The present incumbent Prime Minister will leave office before May 27, and a Unity Government would be formed under the Nepali Congress to conduct elections within one year.
All outstanding work on the peace process would be completed immediately, as per earlier agreements.
Top leaders of the political parties will hold regular meetings to expedite the Constitution drafting process.
As in the past, the sanctity of this agreement could not be maintained. Though the incumbent Cabinet resigned on May 4, 2012, and a new Government was formed within two days, the Prime Minister’s abrupt call for new elections and his assertion that he would lead the caretaker Government, violates the terms of this last agreement.
Significantly, the issue of federalism has divided the nation. The biggest concern is whether to go for single identity based federalism or multiple identity based federalism. While the UCPN-M and its ally UDMF are in favour of single-ethnicity based federalism, the NC and CPN-UML have rejected their option. CPN-UML Vice Chairman Bam Dev Gautam thus noted that “NC and UML proposed (the) multi-ethnic federal model.” Here, the NC diluted its earlier stand of opposing ethnicity based federalism in toto, arguing that state restructuring should be based on “economic and administrative viability” and on geography. The number, size, naming and mapping of the federal States has also evaded unanimity. While the UCPN and its ally UDMF insist that the 14-state model or 10-state model suggested by the Parliamentary Committee on State Restructuring and the State Restructuring Commission, respectively, should be adopted, the NC and CPN-UML proposed a 11 and 12 States model, respectively. Moreover, the Madheshi leaders reiterated their strong opposition to create multiple provinces in the Terai, and stuck to their long standing demand for a ‘single autonomous Madhesh province’.
This fractious outcome resulted despite the fact that the major parties had already agreed, on May 15, 2012, on an 11-province federal structure. The names of the provinces were to be determined by the elected State Assemblies themselves. The Federal States were to be carved out on the basis of ethnicity, geography and language. The parties had also agreed to constitute a Commission to determine the boundaries of the Provinces and to go for a ‘mixed system’ of governance, with a directly elected President, who would share powers with a Prime Minister elected from the Parliament.
The optimism which had reigned over the peace process since the CA was established, after declaring Nepal a Republic on May 28, 2008, now appears to have evaporated. The Government has put Security Forces on a high alert, as thousands of protestors have come onto the streets. Riot Police are patrolling the streets of capital Kathmandu. Though, there have been no significant reports of violence, till the time of writing, the failure of the Political classes to reach a consensual solution, have jeopardized the tentative peace in the nascent Republic of Nepal.
Ajit Kumar Singh
Research Fellow, Institute for Conflict Management