Nepali Times
Plain Speaking
Constitutional conundrums



A full constitution cannot be written by May 28. Neither can the integration and rehabilitation of the PLA (a precondition for the constitution, according to NC and UML) happen before that. That leaves three options.

One, come up with a 'brief' constitution. The CA chairman floated this proposal some time back. The homework to set up a State Restructuring Commission and let it determine the nature, boundaries and powers of provinces seems a step in that direction.

But the lack of a political consensus and severe time constraints reduce the possibility of even such a statute. Many Maoists feel this would be a trap to impose a 1990-style constitution and cheat them of their 'progressive' agenda. Madhesi and Janjati groups have already called it a conspiracy to subvert federalism. Disagreements persist on many issues besides federalism, and there is no broader political deal in sight that could enable what one observer has astutely termed a 'constitution in installments'.

The second option is what Sarita Giri proposed months ago amend the constitution in order to pave the way for an extension of the CA. Many leaders, especially those who are in the CA, privately say this is the easiest way out.
But no party wants to be seen as pushing for an extension publicly, as they fear it would make them look desperate, erode their legitimacy, and give their rivals an edge. There are also differing views on how to go about it. NC lawmaker Radheshyam Adhikari has forcefully argued for a minimal common document, which could form the basis for an extension.

Other leaders say that extension without a broader package deal would mean just postponing the problem. If the balance of power and political disagreements remain the same , we could well be in the same situation after six months. The effort over the next month could then well be to change the balance of power either through re-engineering alliances, Maoist protests, or government adopting a tough line to exert pressure on the other side. In this scenario, expect brinksmanship before they hammer out a last-minute deal that includes CA extension through amendment.

The third option is scary. The disagreements deepen, no side is willing to budge, and there is a political and constitutional crisis on May 28. If you listen to the lawyers, the CA will cease to exist. The government will be seen as a failure. And the president will step in, if only to appoint a new caretaker government and a new constitution drafting committee. The Maoists will erupt onto the streets, provoking a security response.

There are many in the top echelons of NC and UML who are not members of the CA and have no stake in the process. They were reluctant converts to what they saw as the 'Maoist agenda' of the republic, federalism and secularism and see this as the moment to hit back. On the Maoist side too, some leaders feel that this is the time to sharpen the 'class conflict', that reactionaries have ganged up against them, and that the only alternative is to declare a 'people's constitution' from the streets.

But if we assume that politicians are rational actors operating in self-interest, then this nightmarish scenario dims considerably. No one will be able to control a confrontation.

NC-UML will be overshadowed by a stronger militarist establishment. The Maoists will run the risk of ruining their achievements, and their leaders will face serious physical risk. And one hopes that even India will not want to go so far as to 'teach the Maoists a lesson'.

All the big netas know the way out of the impasse. Madhav Nepal's sham set-up needs to make way for a government that reflects the country's true balance of power. The Maoists have to begin the process of dismantling their coercive apparatus, with non-Maoists providing them with a respectable deal on integration. Certain liberal democratic principles along with federalism, secularism, and the republic have to form the cornerstone of the new constitution. The CA can then be extended for six months to a year. The alternative to such a broad agreement is greater anarchy and violence. Take your pick.

1. Arthur
Surely there is a fourth alternative. The two year term of the current Constituent Assembly expires, together with the term of the President. Elections are therefore held for a new CA to provide a fresh mandate from the people.

If that isn't a possibility at all, somebody should explain why it isn't. Simply not mentioning what would be the obvious result in any democratic country suggests a blind spot.

Those who prefer a crisis would reject that fourth option. But if, as Prashant Jha suggests, "all" the major leaders prefer the second option of an extension (based on some broad agreement) rather than the third option of a crisis, then the same leaders would also have to prefer the fourth option of elections for a new mandate rather than a crisis if there was in fact no broad agreement.

Only those who prefer a crisis would insist on not holding elections for a fresh mandate in the absence of broad agreement for an extension. They woud be held clearly responsible for the resulting crisis.

Most of the current government's efforts seem to have been spent on making silly speeches to try and blame the Maoists for failure to reach agreement. Faced with the imminent reality of having to actually persuade voters with that argument, or face a crisis, they may well prefer to reach a broad agreement with the Maoists instead, so as not to go to the subsequent elections as total failures.

I cannot see any reason why the Maoists would agree to an extension without a broad agreement that would result in actual completion of the peace process and constitution during the extension period. Nor can I see any reason why the Maoists would accept any less than what they have insisted on. The opposition (including the MJF) have far less to fear from elections than the governing parties. Even the RPP would expect to gain at the expense of the Congress!

Whether the result is a broad agreement with an extension, an election or a crisis, depends on how stupid the other major parties really are. Just because they seem quite exceptionally stupid doesn't necessarily mean that they will finally choose the options that minimize their chances of ever recovering from their stupidity.

2. Nilabh
A brief constitution, an extension, scare mongering. None of the leaders apparently discussed the obvious choice - elections. All sorts of alternatives being discussed to extend the confusion and misery that the people of this country suffer. 

In the meantime, the media will continue raking in money as the country moves from one crisis to another. As people wait everyday and every hour for further details and updates so they can understand when it is OK for them to get on with their normal lives.

The unholy alliance between political clowns and murderers in the garb of politicians and commentators would continue unabated. Anyone arguing against it would be called a right winger.

Sweet. Ain't that a win-win for everybody. 

3. Sital
"Certain liberal democratic principles along with federalism, secularism, and the republic have to form the cornerstone of the new constitution."  Cornerstone? Don't you think we need to ask the Nepali people first if they do agree with these three things that were imposed on them by the already discredited vacillating jungle rebels?  Is this democracy, Prashan Babu?

4. K. K.

So, no punishment for the incompetents who can not make a constitution.
What about the refund of the tax-payers money that the incompetents had consumed for two years, in the name of " constitution making".

5. eye balls
किरण पाण्डेले फोटो खिच्दाकिन सधै वाइड एगंल लेन्सको मात्र प्रयोग गर्छ? हिलाल मिडियाले अरु लेन्स उपलब्ध गराएको छैन र उनलाई?

6. Slarti
  NR 649,080,000.00 at Rs 45000 p/m per CA member. In addition, housing, travel and attendance allowances etc.

7. Nirmal
It can be happenned anything, anything, If the roadmap is not clear enough. It should be reminded that we are in a country where not only cons and neocons have truly hidden motives to finish the war doing another LTTE but our Maos are even ready to sacrifice(in their words) millions of lives. Strange and very psychich desire to get what one wishes. So, the message should be: stop being vague and stop beating the bush; get to the point.

8. Nilabh
The constitution will be made, they are simply too ambitious to risk it. Prashant knows this. Till now I was not sure why they are doing this - creating an artificial crisis - now I think I know. 

Let me try and communicate what I am feeling. I think the politicians are a) testing the limits of how far they can go with the people, b) negotiating very hard for the spoils till the very last moment. I am 100% sure it has nothing to do with the constitution per se. They could not care less, if they did the constitution issue would not be on the table.

9. Atul Thakur
Dear Prashant,my take is something different on time constraint as you envisaged in your article that time is a bigger constraint in the way of constitutional drafting,I mean here that a deadlock of May28th is not so problematic as the subversive attitude of politicians on different stands...that's real impediments,if these maladies would be addressed than the democratic proceedings would be easier in Nepal.For that utopia,we have to rely on dominant political players,at least for the time being.
                                                      Atul Thakur, New Delhi

(11 JAN 2013 - 17 JAN 2013)