Diminishing returns

  • This week will be crucial to determining the future course of constitution-drafting in the country
Diminishing returns

Mar 30, 2015-

With tensions continuing between the ruling coalition and the opposition, this week will be crucial for determining the course of constitution drafting in the country. If consensus is not forged on key issues by Sunday, the Constituent Assembly (CA) will initiate a voting process on eight disputed issues of the new constitution. Objective questions on disputed issues have already been prepared for the same purpose.

On political and constitutional grounds, the CA can perform its tasks sans the participation of the opposition. After the voting process, the CA will forward the report to the Drafting Committee to prepare a preliminary draft of the constitution.  The further the CA process moves, there will be less room for consensus. So, the best avenue would be to forge consensus on federalism within a week. Towards that end, a CA meeting has been called a day before the 3-day general strike announced by opposition.

Opposite ends

The ruling parties—the Nepali Congress (NC) and the CPN-UML—believe that there will be room for consensus with the opposition even after the preparation of the draft. The opposition’s calculations, meanwhile, are that if they intensify their street movement, the ruling parties will be compelled to come to compromise by halting the majority process. Similarly, the opposition also believes that the international community, specifically the UN and Nepal’s neighbours, will press the NC-UML coalition to accommodate them in the statute-drafting process.

In the last month, UCPN (Maoist) Chairman Pushpa Kamal Dahal and senior leader Baburam Bhattarai have visited China and India. The purpose of both visits was to make their position clear and to garner  support on statute drafting. But international forces seem almost neutral in the tussle between the ruling and opposition parties. Their broad message is that it would be better to draft a new constitution on the basis of consensus among all stakeholders of the peace process. Still, they do not seem to be taking sides. But the fact remains that both ruling and opposition parties are under extreme pressures to sit for talks and find a point of compromise on federalism. Dahal has publicly acknowledged that he is under pressure to accept five or six provinces and cooperate on a new constitution. Similarly, the ruling parties are under duress to address some issues raised by the opposition.

Still, chances of agreement among the parties look slim, even though leaders claim that they are nearing consensus on federalism. The ruling parties are only ready to make only slight changes to their 9-point proposal. On federalism, both the NC and UML are not ready to provide leeway to the opposition. Similarly, they are not ready to increase the percentage of the proportional electoral system to somewhat placate the opposition parties. The NC-UML has flatly rejected any ethnic dimension while naming and craving out federal units, and they are not ready to increase the number of provinces from seven. The ruling parties are rigid because they have the requisite two-third votes in the CA and they are of the opinion that it would be against their electoral mandate to adopt any flexibility in their nine-point proposal.

Four roads ahead

In this light, the opposition parties have four alternatives. The first is to accept the joint proposal of the ruling parties on contentious issues with slight changes so that secularism, federalism, and republicanism will be institutionalised through a new constitution. Narayan Kaji Shrestha of the UCPN (Maoist) and Bijay Kumar Gachhadar of the Madhesi Janadhikar Forum-Loktantrik are more or less in favour of this approach. But dominant voices in the opposition front are against this proposal, claiming it would amount to a surrender of their agendas.

The second alternative is to accept a preliminary draft of the constitution on agreed issues and continue discussions or form a commission to settle the remaining contentious issues. This is a proposal that both the ruling parties and opposition are yet to accept. Opposition party leaders see it as a ploy to tarnish the federalism agenda. The lack of mutual trust makes this alternative difficult to implement. Parties can only prepare a preliminary draft if there is an environment of trust as it could take few months to settle federalism, either through consensus or a commission.

The third alternative is allowing the promulgation of a new constitution by registering a note of dissent on disputed issues, like the CPN-UML did in 1990. It is primarily senior UML leader Madhav Kumar Nepal who is attempting to convince Dahal on this end. The opposition is also weighing the pros and cons of this alternative. The benefit of this approach would be that the opposition will not have to compromise on its progressive agenda while also demonstrating its continued  commitment to peace and the constitution. Disputed agendas could be taken to the people in the next general election. But, very few opposition leaders are in favour of this alternative.

The final and most extreme alternative is a formal walk-out of the CA. Dahal has already told his lawmakers to be prepared for this option. There is also a strong call among the Madhes-based parties in support of this alternative. If there no win-win compromise is available, Dahal and the Madhes-based parties think it would be better to take to the street rather than remain in the CA.

If this alternative is chosen, the opposition front will not rejoin the CA unless there is a broader agreement on the new constitution. So, if the majority process moves ahead, there will be greater chances of the opposition front staying out of the CA and the peace process will remain incomplete. Dahal’s growing rapprochement with the breakaway Maoist parties is seen as preliminary preparation to boycott the CA process.

For the Maoists, the recent Supreme Court verdict, which ruled that conflict-era cases currently at regular courts will not be transferred to the Truth and Reconciliation Commission and that there will not be amnesty for war-era cases, has brought the parties together. If ruling parties are not able to convince Dahal that conflict-era cases will not revived against him or his leader after the promulgation of the constitution, the Maoist Chairman might think it better to unify with splinter groups to consolidate his power.

Either in or out

The ruling parties, meanwhile, have two alternatives. The first is to provide leeway to the opposition on federalism, the electoral system, and some pertinent issues raised by the Madhes-based parties. Some ruling party leaders are so rigid that they are not ready to budge even a single inch, due to their two-third strength in the CA. The second alternative is to go ahead and draft a new constitution on the basis of their majority. This option will leave two major forces—the Maoist and Madhes-based parties—outside the constitution process, which means the statute will be drafted but peace will not prevail.

So, the best alternative still remains the forging of consensus on federalism within the next week. If consensus cannot be reached, the ruling and opposition parties will head in opposite directions and it will be very difficult to bring them back together. In this regard, President Ram Baran Yadav and CA Chair Subas Nembang can play proactive role in bringing the parties together, even though they do not hold executive powers.

Bhattarai is with the political desk at the Post

Published: 31-03-2015 09:23

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