Yash Ghai and Jill Cottrell (left) are constitutional experts who have advised the governments of Kenya, Somalia, Iraq, Afghanistan and Nepal on their new constitutions. They are authors of Creating the New Constitution: A Guide for Nepali Citizens and more recently, The Millennium Declaration, Rights, and Constitutions.

Nepali Times caught up with them on their brief return to Kathmandu this week under the auspicies of International IDEA.

Nepali Times: You were involved as a constitutional adviser in Nepal since 2006. How does it feel to come back to see that the process is still stuck?
Yash Ghai and Jill Cottrell: It is sad, when the country needs to move forward on many fronts. We feel anger at the reluctance of the traditional elites to engage in serious discussions with the marginalised groups on their concerns. Anger also at the betrayal of the people whose struggle enabled the four major political parties to grab power.

Were we perhaps a bit too ambitious in expecting the peace and constitution process to move so fast?
No. The country was ready for a move to a new political order. The monarchy had been vanquished. The civil war had come to an end. A popular uprising had rejected the old system and defined the agenda of reform. Some broad consensus had been established between the Maoists and the major political parties. But by the same token these political groups hijacked the jana andolan. Despite the earlier enthusiasm of the Maoists for fundamental social reform, they and their new political partners had little interest in change, as is obvious from their numerous 'x' point agreements. Politics quickly slipped back to the post-1990 constitution style, with intense rivalry among these elitist political groups dominated by a handful of old warriors. The exclusion and marginalisation of the Janjatis, Dalits and women continued.

Two levels of politics emerged: one between the Maoists and the three parties, focused largely on the self-interest of their leaders, complicated by intra-party disputes, and the other between them and the marginalised groups, where the former were the masters and the latter supplicants, almost always triggered by violence and other forms of disruption. This prevented a proper national discourse on political and economic reform. In the arrangements for the interim administration and for constitution making, the four parties excluded others and ensured their total control of the Constituent Assembly and prevented it from becoming a truly national gathering.

Still, it wasn't supposed to be easy.
Transition from war to constitution is seldom easy, but it is our impression that the issues that have bedevilled the process have not much to do with the aftermath of the war as such--after all a Comprehensive Peace Accord preceded the adoption of the Interim Constitution—and much to do with political rivalries among the elite. And their arrogance, manifested in their contempt of experts, and of people's participation in public affairs.

Shouldn't we have foreseen that the demand for ethnically-based federalism would be so polarising?
Yes. In the last few decades many countries have been confronted by demands for autonomy by minority and other marginalised groups, often with horrendous consequences. There is now some understanding of how to deal with grievances that lead to demands for autonomy, which require long and patient negotiations. No politician that we met showed the least bit of interest in establishing and managing a federation. In other words, the demands need not have been as polarising as they have been.

What can we learn from history and the experience in other countries in addressing the genuine demands of the marginalised communities while preserving national unity?
Social disruption is usually the result of social injustices. Without addressing injustices there can be no real social solidarity, essential to national unity. If the four-party alliance had taken the demands of the marginalised communities seriously, including political participation, negotiated solutions, and embraced them as full partners in the interim arrangements, there would not be the clamour for federalism and autonomy today, with its complexity and we fear divisions among the marginalised communities that serve no one's interest.

But can there be a compromise when positions are so rigid and it has become a zero sum game?
Compromise is unlikely if there is no trust, the elite group has not even tried to establish trust among themselves or with the others. Even if a compromise is reached, it is unlikely to lead to realistic and workable solutions, driven not by reason but threats of violence. A terrible legacy that the politicians have perpetuated is the disregard of negotiations and the art of compromise. And the proposal by some members of the elite groups now to adopt the interim constitution, with its manifold manifestations of the 1990 Constitution, as the new constitution, is bound to raise fresh suspicions of their motives. Back to square one … but compromise there must be, and when it is eventually achieved, the country will look back and ask why it took so long and who was to blame.

Is there also a compromise formula between directly elected executive president and parliamentary system? Is it workable?
The French version of it is workable if there is a political culture of negotiations and compromise, which is missing here. In practice in the mixed system, if the president has a majority in the parliament, it works like a normal executive presidency, and if not, power shifts to the prime minister with significant parliamentary features, and considerable tension between the two top officials. If both are elected, conflict and deadlocks are surely guaranteed.

See also:
One more chance, YASH GHAI
The risks and opportunities of delayed elections

Constitutional ability, YASH GHAI and JILL COTTERELL
Constitutional ability