Almost there, but…

From The Kathmandu Post (05 December, 2014)

Predicament of Pushpa Kamal Dahal and fears of ‘Madhesbadi’ leaders stand between us and constitution

The public is exasperated with the uncertainty and insecurity it has had to live with since the end of the conflict in 2006, a period of suspended animation in the company of an Interim Constitution. The April 2008 elections delivered a Maoist-led government that wasted time and effort trying to establish a one-party state, and there was nothing to do but regard the four years of the first Constituent Assembly (CA) as part of the peace process.

The November 2013 polls for the second CA marked a return to representative democracy, following a gap year with a technocratic government. The Nepali Congress (NC) and CPN-UML received votes that brought them close to the two-thirds majority required to adopt a constitution in the absence of consensus.

The ‘Madhesbadi’ and UCPN (Maoist) had gone into elections accepting this rule of the game, but then fell for the ‘mathaadhes-janaadhes’ argument, claiming that the ballot did not reflect the people’s verdict. It would be consensus or nothing, and Indian Prime Minister Narendra Modi’s public position upon arriving for the 18th Saarc Summit seemed momentarily to embolden this flank.

By principle and practicality, consensus is preferred in the promulgation of a constitution. The challenge is when political parties voted to the CA by the populace cannot have a meeting of minds, when there is no alternative to ‘process’. Chair of the CA’s Political Dialogue and Consensus Committee (PDCC) Baburam Bhattarai should have served as facilitator, but he seems reluctant to let go of the limelight by transferring discussion to the CA plenary. He has, therefore, played coy in handling the joint-paper of the NC and UML of October 29, which states their position on outstanding issues before the CA.

Desperate measures

On the one hand are the ruling parties with the required strength for promulgation, and on the other is the opposition alliance of the Maoists and plains-based parties that blow hot and cold. Part of the confusion has to do with the fact that the partners in opposition are far apart on ideology, with the ‘Madhesbadi’ leaders having hitched their wagon to Pushpa Kamal Dahal, whose only remaining agenda is to remain politically relevant.

Dahal claims that the NC-UML proposal, including the seven-province formula on federalism, denies the 12-point agreement of November 2005 and the Comprehensive Peace Agreement of a year later. The 12-point agreement asked for a constituent assembly, but there was no stricture regarding the definition of federalism. As for the peace process, it has been marked by the abandonment of conflict victims and ex-combatants, as well as Maoist obstructions on the road to a credible Truth and Reconciliation Commission.

Pushed inexorably by the train of events towards constitutional promulgation, after which the rule of law on conflict-era excesses will supposedly kick in, Dahal actually does not have a plan in hand. Neither the national political situation nor the regional geopolitical constellation is in his favour, and so his response is to prevaricate, stonewall, filibuster, and sabotage constitution writing, to push the day of reckoning as far back as possible.

Mountain of suspicion

Nepal’s state mechanism is not inclusive, and the Koirala government seems unable to respond to the deep-seated need of marginalised communities to see a change in the making in terms of participatory governance. The restiveness of members of the intelligentsia from the Janajati and Madhesi fold is something that the political bosses have been unable or unwilling to address. The existing scepticism has vitiated the atmosphere for constitution drafting.

The sticking point, larger than governance structures, electoral system, or the proposed constitutional court, is the delineation of federal provinces. Here, the demand of the ‘Madhesbadi’ parties is for one or two plains-specific provinces, even as the hills are to be federalised on the basis of identity and economic-geography. But the Madhesi identity is amorphous, lacking a buy-in of all of the plains Muslims, Tharus, and Dalits—the latter making the largest proportion of the poor and marginalised in the entire country. There is also the disregard of the large Pahadiya population of the plains.

Interlocutors have suggested that the CA go along with the proposal for two plains-based provinces, as there could always be re-organisation of provinces through constitutional amendment in the future. The idea seems dangerous for the Tarai-Madhes, with its high density and volume of the national poor—would the hill provinces let go of their resource-rich status and agree to federal redrafting?

Sadly, the second CA has not managed to evolve as a forum for open debate on federalism, including the plus and minus of plains-based provinces. Nor have activists outside the CA shown alacrity to ensure that there is a priori discussion of centre-province and province-province sharing of rights and responsibilities, especially in relation to access to natural resources.

Will a plains-specific province help create prosperity in the Tarai-Madhes or generate more poverty? Will not a ‘north-south’ province privilege the plains politically because of population size? Debate on questions like these are stymied by the overwhelming belief among the erudite of Janakpur, Rajbiraj, and Birgunj that Madhesi citizens will continue to be subjugated under Pahadiya domination if there is anything other than a plains-only province.

This, then, is where the debate rests: Dahal playing opportunistic spoiler, Bhattarai’s unwillingness to act as facilitator, and the Madhesi and Janajati leaders outside of the NC and UML angry and bitter. The parties in power have not been able to address the mountain of suspicion through the CA’s mechanisms.


At press time, it seems that the January 22 deadline for the promulgation of the constitution will be extended by a month, but further extensions are unlikely because the credibility of the UML and NC leadership would be at stake. The interim period must be used to take the definition of federalism into open debate in the CA, which requires PDCC Chair Bhattarai to be persuaded to place the NC-UML proposal before the full House (as he seems to have been Thursday afternoon). The debate on the proposal would break the logjam, differing voices would come to the fore, and members of the intelligentsia and civil society who have had it both ways would be forced to take a position. All of which would lead to the possibility of compromise in the open, rather than foot-dragging in the resorts.

In open debate, the political parties may well come to agreement on the federalism definition. Even if not, it would open up public participation in the debate and push political representatives towards some resolution. Such debate may even pave the way for consensus in the CA to declare Nepal a federal state, leaving it to the Parliament to continue work on the matter, perhaps through a commission.

The federalism debate today is certainly back-to-front, and the forthcoming debate must first focus on defining the centre-province and province-province relationship—to ensure that the right of national citizenship overrides all others when it comes to sharing natural resources, particularly water. Only with that guarantee in hand should negotiators enter discussion on the number of provinces and boundaries.

This could indeed be the way to adopt a constitution by consensus within February 2015—declare Nepal a federal state and leave the decision on definition to Parliament. To get from here to there, we need to be alert to the existential predicament of Pushpa Kamal Dahal and respond to the fears of the intelligentsia in Birgunj, Janakpur, and Rajbiraj.

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