Although the constitution writing process has just begun formally, the rift between the Maoists and the NC is ever-widening. If Prime Minister Pushpa Kamal Dahal fails to implement the nine-point agreement with the NC this time, the conflict will persist and hamper the drafting process.

"The Maoists are concentrating on sorting out differences within the party while the NC is playing a tough opposition creating difficulties for the Maoists," says Hari Roka, a Maoist nominee CA member. The Maoists should take the initiative in mending the relationship but the rift has further deepened in the last four months.

NC leader Chakra Bastola says: "If there is no political consensus, the constitution will not be written. But the government is not serious about it. We doubt whether the Maoists really want a new constitution."
Seven months after the CA election, the Assembly passed Rules of Procedure in mid November to start the process. The CA chair Subhas Nembang says 14 subject committees will prepare the first draft which the assembly will discuss and eventually endorse.

Maoist Law Minister Deb Gurung, who also heads the commission to outline the federal structure, is preparing a draft proposal for his party while Maoists Post Bahadur Bogati and Khimlal Debkota have been handed the job with the latter claiming he already has a number of drafts ready.

"If it was a people's republic we could have worked out a different draft but a few amendments in the interim constitution will be sufficient," says Debkota.

The NC draft committee is headed by Chakra Bastola who says his party is taking a bottom-up approach, gathering public opinion from all 240 constituencies before producing the draft. "People are sovereign in a republic country. Therefore, we decided to go to the public first."

The UML has formed 13 subject committees to prepare the draft. According to Bharat Mohan Adhikari the committees will submit suggestions by 30 November having already gathered opinions from Janajati and Karnali people. The UML will also discuss its draft with other parties.

"The major political parties have already agreed on more than 85 per cent of the issues and only 15 per cent remain to be resolved," says Adhikari. The major issues to be discussed are the demarcation of provincial territory, devolution of rights, executive power systems and socio-economic transformation.

But the issue of federal structure is the main point of contention. All political parties have agreed on federalism but the issue of provinces and devolution of power remain unresolved. The Maoists propose basing federal structure on ethnicity and geographical region while UML and NC argue this would be divisive. Madhesi parties are still demanding 'One Madhes One Pradesh' while Limbuwan and Tharuhat state councils are threatening to take up arms if they are not given the region.

There is even division within the Maoists on the federal issue. A faction wants provinces divided north-south, an issue which is being hotly debated in its 13 state councils which were created on the basis of ethnicity and region. "In the name of liberating one ethnic group another should not suffer," says one of the Khas members of Tamsaling state where the debate recently turned very sour.

The UML and NC are at least united in their belief that ethnic-based federalism will not work. NC's Bastola says: "We can learn from the practices of countries where there is federalism. " A task force under former UML General Secretary Madhab Kumar Nepal, has been preparing a draft which is set to emphasise decentralisation and devolution to the grass-roots level.

Many INGOs as well as foreign observers are involved in the process directly or indirectly. Some are funding local organisations to go on foreign fact-finding trips, others have even proposed to draft the new constitution. Offers to write the CA rules of procedure and clauses of the constitution have been rejected out of hand.

Speaker Subhas Nembang takes a dim view of all this: "We told them that fortunately we have experts of our own to prepare our own constitution."

"Indigenous demands should be welcomed"

The UN's Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, S James Anaya, was in Kathmandu this week to talk to representatives of the government and indigenous communities and report back to the Human Rights Council. Nepali Times spoke to him about incorporating indigenous issues in the new constitution.

Nepali Times: Do you see progress in the political representative of indigenous communities in Nepal?
S James Anaya: It is with a sense of humility that I come on this mission. You are engaged in a very interesting process of writing a new constitution within the widely-accepted principles of democracy building. There is the representation of indigenous people, their rights and demands and the need to respond to those. You don't see that in all parts of the globe. Often, these demands for indigenous rights are ignored. Here in Nepal, at least on the surface, you see a responsiveness and official affirmation on the part of the government as official policy.

Do you think that is just lip service, or is it a real commitment?
I will be looking at and encouraging the recognition of the demands of the indigenous communities. These demands are itself a form of affirmation of the collective identity, and coincides with the agenda of autonomy. But you have to find out what the people are demanding in real terms, not what they have been told is the conduit for their liberation or what they perceive as the only route that they think will be taken seriously. There has to truly be an open debate about these issues, and to focus on whether this is how their real interests will be served. The biggest mistake would be to think there is one formula to address the demands of indigenous people across the globe.

Nepal is so ethnically interwoven that some say a federal structure based on ethnicity would not be practical.
Well, that should certainly be taken into account. And really, a majority of the situations around the world are like that. You don't find many geographical compacts which are exclusive of other communities. In some cases such indigenous-based federal units have worked, and others where they haven't. You have to distinguish between recognising indigenous self-governance structures and a federal system.

So, it's not so much about indigenous autonomy but how effective self-governance is within federal units?
There are examples of autonomies based on multi-ethnic areas that encompass indigenous people. Where you do have ethnically-based systems that work well, they are not indigenous autonomies, like Switzerland. Spain is one of the models in Europe for building democracy with their success stories for very strong system economic, social and cultural autonomies in Catalonia and the Basque region.

With the 103 ethnic groups how does Nepal compare with other countries in terms of complexity?
I would say not uncommon, but we have few examples to say that's the way it should be done. That is why what is happening in Nepal is so important. And one has to understand that the demands of indigenous people is not threatening to the integrity of the country, it's simply an effort to build a country that is inclusive along a philosophy of a multi-cultural state. It shouldn't be feared, it should be welcomed.

MAKING WAVES: Gayatri Shah is the youngest member of the Constituent Assembly from the Nepali Janata Dal from Sarlahi district. She is the 'cover girl' in this months' issue of the youth magazine, WAVE, and brings a new face to the evolution in Nepali politics. Young, driven and very optimistic about the future, Gayatri hopes to be able to make a difference in the living standards of Nepalis through politics. She says: "Young people in general are more hopeful about the future, and so am I because I believe in the possibility of positive change the youth can bring."