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    South Asia
     May 11, 2011

Constitutional chaos looms in Nepal
By Dhruba Adhikary

KATHMANDU - As Nepal nears a second deadline for the writing of a new constitution seen as crucial to national reconciliation, few people are optimistic. Last year's deadline of May 28 was extended by a year due to political crises, but there has been scant progress.

Despite the fraught situation, and although he now occupies a largely ceremonial chair, President Ram Baran Yadav told this correspondent that he had an obligation to see the process through. "Since the interim statute has designated me as its guardian, I am aware of its implications in a wider context," Yadav said during an expansive conversation in his office on May 5.

A Constituent Assembly (CA) was elected in 2008 with a two-year mandate to write the new constitution following the end of a civil

war between Maoist rebels and the state and the abolition of the 240-year-old monarchy.

"I am grateful to the people who have given me the highest position that this country can offer," said Yadav.

He said it was important that the nation was set on an "irreversible" democratic path to salvage gains made from a popular uprising in April 2006 that saw the monarchy overthrown. This, he contends, is in line with peace agreements made that year between a seven-party alliance of parliamentary parties (the SPA) and the Communist Party of Nepal - Maoist (CPN-M) that ended the civil conflict.

His anxiety has visibly increased as the leaders of rival factions in the CA intensify a blame game over the flagging peace process - the CPN-M and the Communist Party of Nepal (Unified Marxist-Leninist) together won a majority of 346 seats in the 601-member assembly at 2008 elections. The main differences between the warring political factions center on the future form of Nepal's government - whether it should be presidential or prime ministerial - and on an ethnicity-based federal structure.

Yadav is dismayed not only with political parties but also with what he describes as a "lack of enthusiasm from civil society groups and the media", which are also stakeholders in the process.

"The media are not as active as they were when the struggle was focused on the excesses of king [Gyanendra's] rule," he said. He also wonders why there is so little media debate on the possible fate of the constitution if it is issued before cantonments housing former Maoist combatants are dismantled.

To the Maoists, these combatants, numbering nearly 20,000, continue to be members of the PLA (People's Liberation Army). Their rehabilitation and integration with security forces, including the Nepal Army, has been a thorny issue since the 2006 peace deal between the SPA and the Maoists.

According to the original schedule, the matter was to be resolved within six months. The United Nations Mission in Nepal, which had helped supervise the cantonments together with arms, departed in January under a political cloud. This has raised fears of renewed conflict and doubts over how a free and fair election could be held while one of the contenders retains its own army.

Yadav is equally concerned over events and trends that could affect the country's territorial integrity, and social harmony among its 100-odd ethnic groups.

He says the indifference of democratic activists has led younger generations to be increasingly lured towards a society that is rapidly oriented more to the "radical left".

He compares this to the challenge faced by Abraham Lincoln in the 1860s, referring to a letter Lincoln wrote to a AG Hodges in April 1864 that underscored that the survival of a nation took precedence over applying the law.

The constitutional deadline is drawing closer day by day, giving political factions less room for maneuver. Maoist leader Pushpa Kamal Dahal (aka Prachanda) continues to make speeches about some kind of last-minute miracle, but many are unconvinced.

"We are entering into a new phase of transition ... in fact into an emergency," former parliament speaker Daman Dhungana told local media recently.

Dhungana, also a seasoned constitutional lawyer, said that while granting the CA another extension created one set of challenges, not approving it would create another. In his opinion, the president should immediately invite leaders of the largest parties to a meeting to ensure they appreciated the gravity of the situation.

Last month, United Nations secretary general Ban Ki-moon conveyed his anxieties to rival Nepali leaders by saying that the ongoing peace process remained "incomplete due to continuing differences among the parties".

"It is therefore critical that the government, UCPN-M [Unified Communist Party of Nepal-Maoist] and the Maoist army sustain their cooperation and implement this long-overdue commitment as soon as possible," said Ban.

Ban's representative in Nepal, Robert Piper, echoed his boss' assessment. "To expect a breakthrough in these remaining days would be unrealistic," he said in a comment given to Asia Times Online.

Even if a draft statute was made ready by the coming deadline, there would not be enough time for public consultations on all sensitive issues enshrined therein, he added. "To make the constitution a document broadly owned by Nepali citizens there should be adequate space for public debate."

President Yadav says he has begun such initiatives. In a meeting held early last week, he advised leaders of the three main parties that they must do something tangible by the week ending on May 14, so that the people would be inclined to approve a term extension of the CA.

Prachanda, incumbent Prime Minister Jhalanath Khanal, president of the CPN-UML and Sushil Koirala, president of the Nepali Congress, are likely to be given another nudge if the existing timeframe elapses with no real advances on the ground.

Meanwhile, the CA is rapidly becoming irrelevant. Public outrage is increasing with people demanding the return of the salaries and allowances CA members have taken in the past three years. Since there is no guarantee that a new constitution will ever be written, a large section of population sees no reason to give the existing body any extension - even if only for six months.

A recent poll conducted by the Nepali Times showed that over 70% of participants were against an extension of the assembly's tenure. It is a widely held perception that if the leaders of the leading political parties cannot narrow their differences in three long years, they can't be expected to do so in an extended timeframe.

There are options at Yadav's disposal. He could allow the assembly to be dissolved after May 28 and then issue a decree creating space for a small interim cabinet that would exist for a period of up to six months. Elections could then be held for a body of about 100 representatives who would finally draw up the republican constitution.

Yadav can do this with the support of an army that has a constitutional obligation to respect him as the supreme commander-in-chief. Both Yadav and the serving army chief, General Chhatra Mansingh Gurung, were among the immediate beneficiaries of the post-2006 political order. Yadav would not have become head of state if the monarchy was still around while Gurung would not lead the national army as long as clans with royal connections wielded real influence. They know what is at stake if the changes of 2006 cannot be retained.

While such a presidential step could face legal challenges, there is little chance the public would oppose a move aimed at ending the ongoing chaos, anarchy, corruption and galloping market inflation.

If the president does not act, pro-monarchists might make an attempt to restore the monarchy with support from loyalist groups within the state security apparatus. Former king Gyanendra has stayed in Nepal, ignoring suggestions to go abroad and live in exile. Thinking along these lines, a group of politicians last Sunday called for a revival of the 1990 constitution, which if restored would automatically bring back the monarchy in its constitutional form, along British lines.

That his why some of Yadav's close advisors are suggesting he take a calculated risk. While dissolving the CA may attract some criticism from political parties, including Prachanda's, this would not be a completely new phenomenon. The president was dragged to the center of controversy when he, in May 2009, prevented Prachanda, then prime minister, from sacking the army chief without pre-informing him. Prachanda lost his premiership in that political skirmish.

The Maoist leadership still remains unpredictable despite commitments to a democratic order. Prachanda and his comrades in arms continue to issue public threats that they would resort to armed revolt once again if they were not allowed to have a "people's constitution".

Dhruba Adhikary is a Kathmandu-based journalist.

(Copyright 2011 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication and republishing.)

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