Unless the deadlock over government formation is broken soon, the constitution writing process will be compromised.
3 June 2008
The king gone, Nepal must confront a new danger
Nearly a week after the abolition of the monarchy in Nepal, a democratically formed coalition government still eludes the world’s youngest republic. Instead of introspecting over the reasons for their defeat in the elections to the Constituent Assembly, the Nepali Congress and the Unified Marxist-Leninists are behaving like victors. And the Maoists, who came first but still lack a majority, have yet to master the art of compromise without which there can be no coalit ional politics. At stake is not just the question of governance but something much more fundamental. For unless the deadlock over government formation is resolved quickly, the political atmosphere in the country will get so vitiated that enormous and perhaps irreparable harm will be done to the prospects of writing the country’s new constitution.
Nepal’s voters want the Maoists to lead the government and process of constitution writing, but only on the basis of power sharing. That is why they gave the former rebels 220 out of the 575 elected seats in the Constituent Assembly (CA) but withheld the two-thirds majority needed to allow them to run a single-party government under the terms of the interim constitution. Of course, the Maoists have never said they wanted to run the government by themselves. As soon as the election results became known six weeks ago, Chairman Prachanda extended an invitation to the others to join a government under his leadership. The terms of power sharing had been clearly spelt out by both the text of the interim constitution and the spirit of its working over the past 18 months and it was assumed that these arrangements would carry over.
As the single largest party in the interim legislature, the Nepali Congress got to keep the post of Prime Minister as well as the defence, home and finance portfolios. Moreover, the interim constitution specified that the Prime Minister would discharge the functions of both head of government and head of state and that he could only be removed if a two-thirds majority of legislators voted him out. Now that the Maoists have emerged as the single largest party, however, the Nepali Congress and the Unified Marxist-Leninists are demanding that the terms of power sharing be arbitrarily redrawn. Some of the changes demanded are objective, the product of changed circumstances such as the formal abolition of the monarchy. But some — such as the demand that the two-thirds majority rule for the removal of the Prime Minister be changed to a simple majority — are totally subjective. As the Maoists correctly argue, such demands would never have arisen if the NC or the UML had won the elections.
Be that as it may, the current deadlock over government formation in Nepal can only be broken if the Maoists and the political parties make some effort to address each other’s fears and insecurities in an open and transparent manner. Obviously, both sides must decide on what is vital to their interest and be prepared to compromise on what is not.
Constitutional amendment: Since the Maoists have more than one-third of the seats, the other parties say the provision in the interim constitution requiring a two-thirds majority vote to remove the Prime Minister means Mr. Prachanda can never be ousted once he is elected. The same, incidentally, was true of Prime Minister Girija Prasad Koirala in the interim legislature. On their part, the Maoists say changing this provision to allow the Prime Minister to be removed by a simple majority would make the government unstable and encourage horse-trading.
Both arguments are right but is there a middle path? Even if the Prime Minister cannot be removed except by a two-thirds vote, the interim constitution has fixed the lifespan of the Constituent Assembly at two years. One extension of six months is allowed in case there is a state of Emergency. Since elections have to be held no later than mid-2010, there can be no danger of Mr. Prachanda remaining Prime Minister forever. But what happens if the work of drafting the new constitution takes longer than two years? In that event, the parties should agree that if the life of the CA is extended beyond the stipulated two-year period, a simple majority will suffice to remove the Prime Minister. In other words, the Maoists will have a two-year period during which their Prime Minister effectively cannot be removed. Beyond two years, if the other parties so desire, they can remove him with a simple majority vote. Such a formula should be capable of addressing both the concerns of the parties and the Maoists.
Ceremonial President: The post has now been explicitly introduced through an amendment to the interim constitution passed shortly after the monarchy was abolished last week. But there is as yet no agreement on the precise role and nature of the job. The more the other parties insist that the Maoists cannot claim the post of President, the more the latter fear that the real reason for bifurcation is to create a second power centre to weaken the Maoist Prime Minister. After all, if the post is to be purely ceremonial, why the insistence on denying it to the Maoists? Insofar as they are suspicious of the other parties’ motives, the Maoists are fully justified in seeking to hold on to the post themselves. But their stand that the NC and the UML cannot aspire to the job as “defeated parties” is not logical since the two parties did each win more than 20 per cent of the popular vote.
What form could a compromise on this issue look like? First, the interim constitution would have to explicitly provide for a strictly and exclusively ceremonial role for the President. For the sake of formality, the President might be the commander-in-chief of the Nepal Army but his or her prerogatives in the matter cannot be any more than those of, say, President Pratibha Patil in India. The President cannot declare a state of Emergency, appoint the army chief or decide on deployment without explicit instructions from the Prime Minister and the Cabinet. And there should be no role for the President in the National Defence Council. Second, it is not clear why Mr. Koirala of the NC should be considered the only aspirant for the presidential job; indeed, one solution could be to rotate the post of President among the biggest four parties in the CA or their nominees every six months. The order of rotation could be by drawing of lots or by the smallest of the Big Four (that is, the Madhesi Janadhikar Forum) going first. Alternatively, a nationally respected non-party person could be selected for the job.
Integration of the People’s Liberation Army: Since the PLA’s integration with the Nepal Army is a part of the peace process and figures in the agreements struck by the parties well before the elections, there is no logical reason for this to have become an issue again.
It is highly improper for some parties to now demand the “destruction” of Maoist weapons or the disbanding of the PLA as a precondition for government formation. Even if the Maoists take charge of the defence ministry, Article 146 of the interim constitution clearly stipulates that a special committee to be established by the Cabinet will handle the work of integration of former Maoist combatants. It is in the interest of the Maoists to ensure plurality of political representation in this committee so that there is wider oversight of an issue that clearly concerns all parties. It may be possible to seek an explicit commitment to this effect but the demand being made from some quarters that the entire modalities of integration be thrashed out before the new government is formed is illogical.
Activities of the Young Communist League: The real or purported activities of the YCL have generated considerable alarm and consternation in the ranks of the other parties. As such, the Maoists have to realise that the process of government formation will go smoother if this issue is sorted out in a transparent and fair manner. It is unreasonable for anyone to demand that the YCL be disbanded; but certainly it is legitimate for parties to insist there be no “paramilitary” of “law enforcement” manifestation of its activity. Mr. Prachanda has gone on record to say the Maoists themselves want the YCL to be a “development-oriented” body. The sooner they start taking practical steps towards this end, the better.
Return of confiscated properties: The parties are insisting that the Maoists ensure the return of properties seized by them or their supporters during the course of the ‘People’s War.’ Here, it is necessary to separate this issue into two. Certain properties such as private dwellings are easier to return but land seized from landlords is not. In the case of land that is being tilled by persons other than ‘legal’ owners, a solution of a longer-term nature can be found through the constitutional process itself rather than through bargaining outside the CA. After all, Article 19 of the Interim Constitution speaks of “compensation” to be paid by the state for any property requisitioned as part of “scientific land reform.” The question of land is central to the livelihood of millions of ordinary Nepalis and land reform will be a major pre-occupation of the CA. It is only through the work of the CA, therefore, that a comprehensive and just solution to the problem of confiscated properties can be found.
In sum, a careful review of the five outstanding issues dividing the Maoists and the parties suggests that a workable compromise is possible. The electorate, in its wisdom, produced a certain distribution of seats. The Maoists cannot now seek prerogatives not envisaged by the electorate. By the same token, the other parties must not try and cheat the Maoists out of their mandate by arbitrarily changing the power sharing formula that had been agreed upon prior to the elections.