Constitution must address both NC-UML and Maoist agendas
- DAMAN NATH DHUNGANA
Feb 1, 2015-
Almost 14 years ago, in 2001, former Speaker of the House Daman Nath Dhungana and former Health Minister Padma Ratna Tuladhar were appointed facilitators by the state to hold the first formal talks with the then CPN-Maoist rebels. It has now been over nine years since the 12-point agreement between the mainstream political parties and the Maoists was signed on November 22, 2005. But a new constitution through a Constituent Assembly (CA), which was part of the agreement, is nowhere near completion. Instead, continuing differences have polarised the political class. Dewan Rai and Darshan Karki spoke to Dhungana about the current deadlock in the second CA, its implications on the peace process, the role of civil society, and the current CA Chairperson’s standing.
The parties’ self-imposed deadline to promulgate a constitution has now passed and many fear that the peace process is at risk. What is your reading of the situation?
We are currently being divided along the lines of who is right and who is wrong. Both the Nepali Congress-CPN-UML coalition and the UCPN (Maoist)-led opposition argue that they are right. But we should instead be asking: what agreements have been reached since the 12-point agreement; who abided by those agreements and who did not; what are the rules of the game? The current debates on consensus, process, two-thirds majority, etc, are irrelevant. We need to look at the current state of affairs along two yardsticks: the peace process and the reason we are writing a constitution through the CA in the first place.
How would you define these yardsticks?
The peace process indicates that the Maoist party was at war with the state for 10 years. On the one side, there were the parliamentary parties while on the other were the Maoists. As such violence could further disintegrate the country, destroy infrastructure, and force people to live in fear, the parliamentary parties called upon the rebels to leave behind the politics of arms and join electoral politics. After they give up violence, the pro-change agendas of the rebels would be included in the constitution to the maximum extent possible. To put things in perspective, the Congress and UML were also parties that carried ‘change’ agendas in the 1990s. So just as the agendas of the NC-UML got space in the 1990 Constitution, the agendas of the Maoists should also get space in the constitution that will be written by the CA.
The current need is to reach an agreement between the two ‘change’ agendas: the democratic agenda of the NC-UML and the Maoist agenda of progressive restructuring of the state, inclusion, proportional representation, secularism, and federalism. Both sides have accepted all of this since the 12-point agreement, Comprehensive Peace Agreement (CPA), and Interim Constitution. And at different periods of time, there have been several other agreements with other stakeholders too. So the ‘change’ agendas are now the common agendas of the NC-UML, Maoists, and Madhesis.
Do you see these agendas being incorporated into the new constitution?
No. This is because, instead of seeking consensus on ‘change’ agendas, parties are seeking consensus through their election mandate by getting into the voting process. The ‘change’ agendas were the mandate of Janaandolan II, to which all the major political parties are committed. So the constitution should be written on that basis, not that of the 2013 election. If you seek to do so, then there will be a clash of two elections mandates. The Maoists will argue that it was the largest party after the 2008 elections while the NC-UML will say the old mandate has been rejected. In principle, the current path adopted by the parties is in itself wrong.
Can you remind our readers of the philosophical underpinnings behind the CPA?
There is a list of components. They are: renunciation of violence; peaceful settlement of disputes; universal commitment to a liberal democratic value system; adoption of progressive restructuring of the state; maximum inclusion of the rebel’s agendas; and adoption of a consensus (among stakeholders) based constitution through the CA for a new Nepal.
When did the peace process effectively begin in Nepal and where are we currently?
The peace process has three components. The first was disarming former rebels and combatants. The second component is promulgating a constitution based on the agreement or acceptance of parties to the peace process. In simple terms, it means a constitution written with the participation of the ‘rebels’, the Maoists, and other stakeholders like the Madhesis and Janajatis. The constitution should be acceptable to the ‘rebels’, not just to the NC-UML. The third component is healing the wounds of war. This will be done through the formation of a Truth and Reconciliation Commission and a Disappearance Commission, which has not even begun. We have only completed one stage of the peace process.
Regarding the third component, there was some progress after the TRC Bill was passed, even as cases have been filed against it at the Supreme Court. Now, it seems to have stalled.
This is linked to constitution writing, but it should have been completed a long time back. Initially, the plan was to make the whereabouts of disappeared people known in 60 days, the TRC formed within six months, and the constitution written within two years. None of this has happened and the delay has resulted in new complications.
What caused this delay?
The first reason was the procrastination and hesitation to implement these agreements. It has now been nine years since the 12-point agreement was signed, beginning the peace process. Second, the very nature of the agreements was problematic. They were hastily prepared and as a result, half-cooked. The state, in order to form a CA, signed agreements with just about every other party. The parties should have revised these agreements.
Can you elaborate on this revision?
For instance, the 12-point agreement talks of state restructuring but does not give details about how to go about it. The formation of a restructuring commission was one way to settle the issue. But parties did not agree to the report formed by the CA Committee on State Restructuring. No one is willing to follow the rules of the game. Parties agree to something only if they like it. For instance, all the parties first said they agreed to federalism. Then the moment discussions began, the fights started. As they say, the devil lies in the details.
So how should the peace process move forward?
There should be an agreement on agendas among all stakeholders both within and outside the CA. Consensus will have to be two-tiered. First, the ruling coalition has to seek consensus with the opposition within the CA. Second, on the basis of the agreement with the opposition, it should seek consensus with parties outside the CA, like the Mohan Baidya and Netra Bikram Chand-led Maoist factions. Then we have new stakeholders, like CK Raut in the Tarai and others in Limbuwan, who have emerged due to the delay. We need maximum consensus as the constitution is the basic law of the land. But as 100 percent consensus is not possible, even when there are voices against the constitution, it should be such that the state can withstand that dissent.
There are now talks of promulgating a consitution through a majority in the CA, which was talked of in the first CA too as the Maoists had reportedly collected signatures of nearly 420 members.
That chapter is now closed. Then, the Maoists-Madhesis were in majority while the NC-UML is in majority now. The Maoist leadership failed to convince the NC-UML then. Now, the latter is unable to convince the Maoists and Madhesis. So eventually, either the CA will be unable to write a constitution or the statute it makes will not be acceptable to all. It is not just a matter of announcing a constitution; this document has to be accepted by all stakeholders, who now include forces outside the CA too. The argument for a simple majority only applies to the legislature. No one can stop the NC-UML from promulgating the constitution, but do they want a constitution for peace or for war? Such a majority constitution could lead to a reversal of the peace process and a relapse into violence.
What could be the role of civil society in all of this?
This change was brought about by civil society. We gave the political parties moral authority during Janaandolan II. But they have never made civil society party to the peace process. Had there been genuine representation of civil society in the CA, it would have acted as a cushion. In both the CAs, parties handpicked people from civil society not as neutral and independent canditates but as their representatives. The current impasse between the ruling parties and the opposition is a fight between litigants. Civil society could have helped bridge differences. It was civil society—Padma Ratna Tuladhar and I—who were state-appointed facilitators who first brought the Maoists to the negotiation table in August 15, 2001. So one option to break the current deadlock could be to take independent civil society members into the CA or else, such members could be given authority to facilitate the process even outside the CA. We are already doing it informally.
Lastly, how would you evaluate the role of the current CA Chairperson?
Chairperson Subas Nembang should not have pushed for the formation of the Questionnaire Committee, as there was already tension in the CA due to the opposition’s protests. He should have asserted his role as CA Chair and stopped it. If not, he should have let the parties themselves come forward with the proposal, not done it himself. Now, the House is divided. He should correct his steps, convince the opposition, and fulfill the role of an effective facilitator.
Published: 02-02-2015 09:19