Thursday, July 29, 2010

A fine kettle of fish

The history of the world shows that a constitution does not become democratic simply because it has been drafted by a popular leadership. One must not be oblivious of the requirements of the law of the constitution in a democratic framework.


JUL 28, 2010 - The weird electoral contest between UCPN (Maoist) chief Prachanda and Nepali Congress leader Ram Chandra Poudel for the post of prime minister scheduled to be held on August 2 is not surprising. This is a product of the defective constitution that Nepal has adopted as an interim arrangement.

If Damodar Pande (1799-1804) is taken as the first prime minister of Nepal, Madhav Kumar Nepal (2009 onwards) would be the 58th. As the story given by historians goes, Pande took over the coveted position himself in the best assessment of the situation because King Rana Bahadur Shah had just abdicated, and his son and heir apparent, one-and-a-half-year-old Girvan Yuddha, was too young to replace his father. Pande faced almost no protest against his move. His rivals Bhimsen Thapa, Dalbhanjan Pande and Queen Rajrajeswari—all very powerful at the palace—were already out of the country with the king.

From this time onwards, the position of the prime minister became part of the court of the royal palace. Ever since, it was either the free choice of the king (or the queen) to appoint who the prime minister should be, or an induced choice. But it was only in 1959, or 155 years after the assassination of Prime Minister Damodar Pande, that multiparty general elections to parliament were held based on adult franchise; and B.P. Koirala, being the leader of the party commanding a two-thirds majority in the house, was appointed by the reigning king as prime minister.

In a Westminster-style parliamentary system, it is the responsibility of the head of state to ask the leader of the party commanding a majority in the House of Representatives to form a government based on his electoral strength. In a post-election scenario when there is a party in the house which is holding a clear majority of seats, there is little controversy about this matter. As such, the leader of the parliamentary party is without doubt asked to form a government in that case. There is no election in the house, whatsoever.

In alternative scenarios, or when there is no party with a majority, the head of state has to see whether a leader who can mobilise a coalition of parties to form a majority, or a minority party even if it is still far behind in the required number of votes, can provide the necessary leadership. When the head of state does so, here too, he or she is guided by the strict parliamentary convention to ask the person best placed to secure the confidence of the house (that is, the active or passive support of a plurality of its members). Once the prime minister is appointed, he or she is then asked by the head of state to form the cabinet, bring the house in order and demonstrate its confidence to carry on further.

The role of the head of state in this exercise has two immediate effects. First, by appointing the potential prime minister, he or she recognises immediately the competitive electoral strength of the party which has shown its mandate to lead the country (when compared to other competitors). Second, by recognising the leader of the house, he or she gives the opportunity to talk with the colleagues, organise a cabinet, and prepare itself for a vote of confidence.

When the prime minister is a coalition leader, or just a minority party leader as noted above, this is also the time for the prime minister to prepare a common front, sort out differences between the parties joining hands, and create grounds for a stable government. This also gives him or her the opportunity to deal with others from positions of power (by virtue of whatever electoral mandate he or she has). In such a situation, a prime minister need not go to every party to “buy” their vote, resort to malpractice and show “numerical” strength over others.

More or less, this was how it was in Nepal under the 1990 Constitution. Unfortunately, the Interim Constitution, drafted and frequently amended with the least commitment to democracy, parted with this time tested convention for hidden political reasons. It encouraged constituting a government based on “consensus” in order to facilitate a non-partisan approach in writing the constitution. But it never happened, and there is the least likelihood of it happening this time around too. A person who cannot command a majority cannot lead a consensus government either. When there is no majority party, the role of the head of state is crucial to ensure smooth sailing through the divided house. His wisdom in choosing the most suitable person as prime minister would have saved the continued legitimacy of the April 2008 elections.

The resulting malpractices, including the fast degeneration of the electoral mandate, could be easily shingled out. First, a prime minister who was still commanding a clear majority in the house was made to resign. Had the need for a “national” government been the issue, the prime minister should have been given the first opportunity to talk with the parties unrepresented in his council of ministers and expand the cabinet without smashing his team. Second, every party which can help build a new coalition, or a new national government, is now contesting for the post of prime minister, making it impossible for others to form a government (the smaller parties being insignificant in the head count).

Third, when it is very clear that the in-house election for the prime minister has failed, the constitution should have allowed the formation of a minority government without a hitch. In fact, the largest party in the house is being victimised because its strength based on the electoral mandate is not being recognised. Whether a national government or a government of a coalition of parties, the largest party should have been given the opportunity to form the government first, and take the necessary confidence initiative later. There is no provision in the constitution which states that even a minority government should be allowed to perform in good faith and that it takes a vote of confidence in due course.

Finally, the simple rule that where the house is not able to produce a government at all, it should be dissolved and fresh elections called has also not been stated in the constitution in the spirit of the Westminster tradition. Given the responsibility to adopt a new constitution for the country, the Constituent Assembly, or the country’s parliament, was not provided this option. There is logic in this argument. But the net effect of all these constitutional defects is that this country cannot produce a government on the basis of the constitution.

What is there as a direction, then? There are two possible options. The first direction is another lot of compromises on Nepal and its institutions. The Interim Constitution created an elephant without providing a mahout. The mahout is operating from outside the constitutional regime—defeating the purpose of democracy and the rule of law.

Or, as stated in the beginning, a new Damodar Pande will have to emerge who will proclaim himself the new protector for the transition. Suffice here to pinpoint what led to the rise of Jung Bahadur. The history of the world shows that a constitution does not become democratic simply because it has been drafted by a popular leadership. One must not be oblivious of the requirements of the law of the constitution in a democratic framework.

Bipin Adhikari

Thursday, July 15, 2010

Things don’t look good

The failure of the leaders to provide the CA a positive work environment is a real letdown.


JUL 14, 2010 - President Ram Baran Yadav has called upon the political parties to form a majority government after they failed to form a national government within the extended deadline given by him.

While his move was unavoidable in the given situation, there is little doubt that the state of affairs will change materially with a change in the present government, if it is not a government with a two-thirds majority in the legislature. The ultimate objective behind instituting a new government is to make it possible for the Constituent Assembly (CA) to finalise the draft constitution and pass it with the required two-thirds majority. Obviously, a simple majority government cannot fulfil that objective.

The UCPN (Maoist) has been very vocal about having a national government. But when they talk about a national government, they mean a government led by themselves. A major bottleneck towards this move. Also, contrary to this perception, they could do pretty little over the last two weeks to solicit the necessary support from the others by recommitting themselves to universal democratic standards, which have always been questionable. In fact, it is enough for the Maoists to have either the CPN-UML or the Nepali Congress to form a strong government with the support of other fringe parties and put together a two-thirds strength in the house. But they did not try out this option. They think the UML and the Congress are unnaturally tied to each other “under pressure”, and only a national government can weaken the case against them.

Whatever the Maoist weaknesses, many aspects of the ongoing negotiations are still not transparent. It is said that efforts to reach a consensus failed as the three major parties—the UCPN (Maoist), the CPN-UML and the Nepali Congress—refused to give up their respective stances. However, it is not yet adequately clear what were the stances of each of these parties. There were certainly movements of leaders from this corner of the parliamentary premises to that corner, but even knowledgeable people were not clear about who wanted what, and what were the issues that prevented a consensus. To this day, the positions and counter-positions have not been put across plainly. What has been observed is that the tenacious “Tom” is forever on the tail of his elusive nemesis “Jerry”, fully disregarding the mayhem and destruction that has been ensuing.

There has been no talk between the major parties, absolutely none in fact, on sorting out the contentious issues before the CA and its Constitutional Committee. Similarly, the parties were not ready to sit down with the Maoists with some homework on their action plan on the integration of the combatants and discuss what further concessions could be necessary. The Maoists kept up their sleeves additional options to address the concerns of the NC and the UML regarding dismantling the Maoist youth wing, the Young Communist League (YCL), and returning properties seized by the party during the insurgency. There was simply no effort to move ahead with a genuine desire to complete the peace process, and it will remain incomplete without Maoist participation.

At present, the prime minister is from the CPN-UML and the chairperson of the CA is also from the same party. The major coalition partners, especially the Nepali Congress, have led important ministries. The president also comes from this party, and the chairperson of the CA Constitutional Committee, the principal constitution drafting body in the CA, is also a Nepali Congress nominee. In the perspective of the Maoists, they do not show up anywhere as the largest party in the CA and, therefore, in the scheme of constitution writing. Politically, they think it will be a disaster for them to sign off their power and clout to agree on a constitution finalised by the UML or the Congress.

Instead, the Congress and the UML smelt a rat in the 60-week time plan of the UN Mission in Nepal (UNMIN) for the integration and rehabilitation of Maoist combatants. Prime Minister Nepal went so far as to criticise the UN agency in public disregarding diplomatic norms. He also completely ignored the fact that UNMIN’s plan had already been discussed with the relevant authorities of the government and the political parties had already been consulted for their feedback. The UNMIN time plan might have been a little uninformed by the politics after the resignation of the prime minister; it definitely deserved an informed response.

The days ahead are not propitious. The situation reminds one of what happened in the Middle East 60 years ago. Elections to the Constituent Assembly were held in newly independent Israel on Jan. 25, 1949 with 85 percent of the people casting their votes. A noble thing had been done. However, the assembly was able to hold only four meetings. The political leadership was faced with the challenge of establishing a democracy within physically vulnerable borders surrounded by active aggressive elements. There were chronic political and ideological differences. There were good leaders as well. But the situation was not so good. They tried, but quickly gave up.

On Feb. 16, 1949, the assembly adopted the Transition Law by which it renamed itself the First Knesset (i.e., first assembly). Because the assembly could not prepare a constitution for Israel, the Knesset became the heir to the assembly for the purpose of fulfilling this function. It was intended as a constitutional stopgap for Israel. But once the constitutional development process stalled, the law took on a pseudo-constitutional character. The situation has not changed even after 60 years. There are important constitutional laws in the country. But the country’s lack of a constitution still translates into a paucity of clearly articulated values what the state represents and defends.

Notwithstanding this fact, Israel is still hoping for the best. Its institutions are still working. Its economy is still prospering. The country is defending itself against all odds. Its people have not lost faith in the political state. Nepal’s scores are generally at an all-time low against its own standards. The failure of the leaders to provide the CA a positive work environment is a real letdown. It must not be minimised.

Thursday, July 1, 2010

Knots and bolts

BIPIN ADHIKARI "Political difficulties surrounding the resignation of Prime Minister Madhav Kumar Nepal, despite the fact that he still holds a clear majority in the Constituent Assembly (CA), are more than obvious. What is not obvious is what is supposed to come next."

JUL 02, 2010 - Political difficulties surrounding the resignation of Prime Minister Madhav Kumar Nepal, despite the fact that he still holds a clear majority in the Constituent Assembly (CA), are more than obvious. What is not obvious is what is supposed to come next.

In a way, the prime minister had been under constant pressure from UCPN (Maoist) to resign as a condition for their support to amend the constitution for extension of the deadline to write a new constitution by a year. With his resignation, the prime minister has fulfilled, although belatedly, the understanding to which he was not a negotiating partner. He has become a ‘caretaker’ prime minister, and the Maoists, as a largest party in the parliament, now have the opportunity to tender their claim for the next government.

It is now the turn of the Maoist party, which has the crucial votes for passing any constitutional provision by the required two-third majority, to reciprocate the goodwill by starting to implement the remaining two points of the three-point understanding signed between three major parties on the midnight of May 28. The three-point understanding comprised of a provision for extending the term of the Constituent Assembly by a year, implementation of all past agreements (which envisage a democratic constitution for the country) and the resignation of the prime minister within ‘days’ to pave the way for a national government.

At the moment, there is very little distance between the Maoists and the vacant post of prime minister, if they are flexible to reach consensus with other parties on the integration/rehabilitation of their combatants, and tone down their aggressive positions on many crucial constitutional issues. It is not that Maoists do not understand the implications of what they have proposed; the problem is they want exactly what are being implied. These positions, if conceded under pressure, can detrimentally affect the quality of democracy under the new constitution due to their authoritarian overtones.

CA Chairman Subash Nembang has already compiled 18 contentious constitutional issues, and asked the parties to find compromise solutions on each of them, in order to help the constitution drafting process resume. These issues overlap with, and the real number of contentious issues is no more than 12. Some of these issues are real, but result from a blatant disregard for the basics of constitutionalism.

In addition to that, however, the most pressing issue is the lack of agreement on integration/rehabilitation of the combatants—on which Maoist preconditions are not aboveboard. There are multiple options on the table, but the breakthrough will come only after the Maoists give up their desire to retain their combatants until their grip on power is fully achieved. If this is not true, it is probably the time for the Maoists to show where they stand on these issues—and how they plan to go ahead if they are to form the next government.

It is probably not out of place here to point out that the initiative of CA chairperson towards formation of the State Restructuring Commission (SRC)—something that surprises many ethnic groups—may not be a good idea. There are issues for sure—on the number, names and boundaries of federal units. But they must be handled within the Constituent Assembly, without discrediting the groundwork done by the Committee on State Restructuring and Division of State Powers and Committee on Natural Resources, Economic Powers and Allocation of Revenues.

Even if a SRC is created, it would not have a magic formula. It would be the forum of the same politicians, same experts and probably the same biases or prejudices. But its creation will definitely create an environment of distrust between political parties who have different levels of commitment and enthusiasm about federalisation issues. The best way out in the given situation is to devise a small but politically powerful sub-committee within the CA, which would have access to all experts and resources that a SRC might purportedly enjoy, but also build on what has already been done.

Additionally, it is good to revive the high level political mechanism to work within the Assembly. The role of such a mechanism has become all the more important because of lack of towering or statesman-like leaders in the assembly who can get things done. There has not been enough give and take in the matter of principles to create a win-win situation so far. In an environment which lacks coalition culture, such a mechanism, if properly worked out, can help political parties arrive at crucial decisions.

The Constitutional Committee in the CA, the final drafting body, must also be able to lay down certain norms on the length of the new constitution. The details that have come through the thematic committees are simply too long. What is to be included and excluded is the most difficult part of the job. A related issue is tension between shortness and detail. A short and simple constitution is much better. But the shorter the document, the greater the scope for interpretation by the courts. There is no agreed boundary of what is constitutional, and what is not. But the issue must be sorted out in order to save the document from unnecessary challenges—especially due to unnecessary details.

There is no other way out of working with the Maoist if the ongoing transition is to be completed within the next 11 months. Even with Maoists, it is not going to be smooth. There are contradictions within Maoists as well. The only positive thing is that it is still united, and the present leadership, despite all its shortcomings, is still the best available bet for any meaningful change in the country.

Buying time for a favourable balance of power before letting the CA resume its work is dangerous. To put it categorically, as this critic has noted before, any attempt to bring a split in the UCPN (Maoist), supposedly to “rightsise” it in the CA will be the most irresponsible approach to handling the current situation. Its breakup into rival forces is neither in the interest of Nepal, nor its neighbours.