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'Complex Equilibrium' Needed Among Elites

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The constitutional process in Nepal has to build a complex equilibrium among elites, says International Crisis Group, the Brussels-based crisis monitoring group.


International Crisis Group, the Brussels-based group, has a 15-point recommendation for Nepali leaders and Moaists. The 45-page report(in PDF) focuses on the constitutional process in the interim period.

Nepal’s Constitutional Process

Asia Report N°128, 26 February 2007

Executive Summary & Recommendations

With the formation of an interim legislature incorporating mainstream parties and Maoists, Nepal’s peace process hinges on writing a constitution that permanently ends the conflict, addresses the widespread grievances that fuelled it and guards against the eruption of new violence. Most political actors have accepted the Maoist demand for a constituent assembly (CA) tasked with framing a new dispensation, although royalists are worried over the future of the monarchy, which has in effect been suspended. The major challenge is to maintain leadership-level consensus while building a broad-based and inclusive process that limits room for spoilers and ensures long-term popular legitimacy. Recent unrest in the Tarai plains illustrates the dangers of ignoring popular discontent. Key political actors need to prepare more seriously for the CA. Led by the newly established United Nations mission in Nepal (UNMIN), the international community should pressure all sides to abide by their stated commitments and global norms and provide technical assistance to the electoral process.

The interim constitution promulgated on 15 January 2007 established a framework for constitutional change and enshrined the guiding principles agreed in earlier negotiations. The new constitution’s drafting process has to address the twin objectives of peacebuilding and longer-term political reform. It offers an opportunity to cement the Maoists’ integration into mainstream democratic politics, to determine the monarchy’s fate and to tackle long-standing ethnic, regional and caste fissures. But successful constitutional processes require a delicate balance of elite accommodations and broad public participation. If the joint mainstream party/Maoist leadership fails to balance these sometimes competing demands, or the process stalls, violent conflict may emerge once more.

There is also a tension over timescales – a speedy process would maintain momentum but could cut too many corners. The elections and assembly will not be perfect but they have to be good enough: the polls must be plausible, and the assembly must be seen to work adequately. The initial arbiters of the election’s fairness will be a small number of critical domestic and international constituencies, primarily the major party leaderships and India. If their judgement is out of step with the national mood – as it often has been in the past – it will produce new problems.

The constitutional process has to build a complex equilibrium among elites. It must provide political space for the Maoists while limiting their options to use violence or coercion against political opponents. The consolidation of a competitive multiparty system naturally bolsters the mainstream political parties but in the short term will heighten their differences with each other and may encourage a return to the less than edifying tactics of earlier parliamentary politics. Managing the transition in the palace’s role may also present difficulties: political leaders have skillfully stripped royal powers comprehensively but gradually, with no single step sufficient to prompt a backlash. But a decisive alteration of traditional power structures will still encounter resistance from conservative institutions – not just the palace but also elements of the army, judiciary and bureaucracy.

So far the process has concentrated on building elite consensus at the expense of intense political debate or extensive public consultation. A handful of SPA and Maoist leaders have controlled closed-door negotiations; limited parliamentary scrutiny has not even extended to recognising the concept of an opposition. The interim constitution has granted the prime minister and cabinet sweeping authority, subject to minimal checks and balances; the compromised independence of institutions such as the judiciary has weakened the principle of separation of powers. The inclusion of provisions such as the unrestricted authority to grant pardons suggests that interim arrangements may enable the political elite to sweep past misdeeds under the carpet.

Warnings of a “new dictatorship” are exaggerated but the peace process has so far delivered an oligarchy of party leaders rather than a popular democracy. Party leaders have shown little appetite for pluralism: the interim legislature will have no official opposition, royalist parties may be excluded from the CA, new parties will find it very hard to register for elections, and in any case, “consensus” decisions will leave most power in the hands of party leaders. Ad-hoc pre-negotiation of important issues threatens to undermine the constitutional process. For example, the SPA-Maoist response to Tarai discontent was to push forward proposals for federalism, thus pre-empting any meaningful discussion of one of the CA’s central concerns.

The demise of the 1990 Constitution illustrates that no new constitutional order will gain legitimacy unless it visibly incorporates public input. Diverse education efforts, including both local initiatives and internationally-funded projects, have already begun; expectations of significant changes have been aroused. However, there are no institutional structures to channel, process and consider the results of consultation. The Interim Constitution Drafting Commission invited public input but lacked a clear mandate or adequate mechanisms to deal with submissions. The result was public frustration and dissatisfaction with the end product. The CA process will need to do better if it is to deliver greater legitimacy.

Mainstream parties have devoted scant consideration to the difficult questions of procedure involved in constitutional reform. Few have embarked on internal changes to tackle their own problems of corruption, patronage and exclusion that fuelled support for the Maoists. Strengthening parties’ internal democracy and accountability would directly benefit the constitution-making process.

The Maoists first agreed to join multiparty politics in November 2005. They need to use the transitional period and the CA elections, scheduled for June 2007, to justify this strategy to their cadres. This could encourage them to democratise and make the most of open political campaigning on their populist agenda but it will also tempt them to retain their tried and tested tactics of intimidation and coercion. To date, the picture is mixed: while they have not given up all illegitimate means, they are working to present a moderate, compromising image.

It is to the credit of Nepal’s government and the Maoists that the peace process has largely been internally driven rather than internationally imposed and that the key political players have shown a willingness to recognise and learn from past errors. The international community, nevertheless, has an important, if ancillary, role in supporting the constitution-making process. In addition to funding grassroots education, donors should build on the country’s considerable intellectual capital, for example by funding publications, radio shows and news articles by local scholars, lawyers and activists. Aid that promotes transplanted models or that pursues donors’ narrowly conceived political goals, however, would likely be counterproductive.

RECOMMENDATIONS

To the Government of Nepal and the Communist Party of Nepal (Maoist):

1. Commit publicly that elected delegates to the constituent assembly will abide by the principles listed in the preamble of the Comprehensive Peace Agreement (CPA) so that the constitution to be drafted reflects those principles.

2. Commit publicly before the constituent assembly convenes to abstain from trading off constitutional goals for short-term legislative purposes.

3. Enact a law, in accordance with Article 79 of the interim constitution, stipulating transparent agenda-setting procedures for the constituent assembly in both plenary and committee sessions.

To the Interim Government of Nepal (once formed):

4. Establish a professionally-staffed commission with a clear mandate to:

(a) prepare options for constitutional provisions;

(b) manage a process of public submissions, including the preparation of public education materials and the facilitation of public outreach;

(c) synthesise and analyse public submissions received and prepare detailed summaries of the issues and demands raised by the general public;

(d) issue a public report detailing how the constituent assembly discussed and, to the extent relevant, incorporated public input; and

(e) communicate effectively to the public the progress and next steps of the process throughout the lead-up to, and life of, the constituent assembly.

5. Clarify that the mandate of the constituent assembly in its capacity as a legislature will be narrowly construed to cover solely issues that must be resolved before the creation and convening of an elected, true legislature under the new constitution.

6. Enact rules to maximise the transparency of the constituent assembly’s deliberations by, for example, providing for press coverage of, and public access to, all plenary sessions and limiting the number of closed committee sessions.

7. Demonstrate willingness to engage in serious debate with parties not represented in government so as to encourage them to play the role of a constructive opposition.

To the Mainstream Political Parties:

8. Carry out internal reforms in line with Article 142(3)(c) of the interim constitution, including the setting of minimum quotas, to improve the representation and participation of women and minorities such as dalits and ethnic groups in party bodies such as central committees.

9. Establish internal rules to promote transparency and increased debate so as to diminish the importance of patronage as a factor in intra-party decision-making.

To the Communist Party of Nepal (Maoist):

10. Renew the commitment made in the CPA to a constituent process that is “without any kind of fear” by:

(a) announcing that all private and government public education efforts related to constitutional reform will be permitted without interference or violence;

(b) allowing the police, as agreed in the CPA, to maintain order and investigate criminal activities; and

(c) committing publicly to respect freedoms of speech and political association of other political parties and other entities engaged in mobilisation or education in the run-up to the constituent assembly.

To India, the U.S., the European Union and Other Members of the International Community:

11. Maintain coordination and avoid duplicative or conflicting efforts by consulting with each other and, where appropriate (as, for example, in electoral assistance), making use of the coordinating capacity of the United Nations Mission in Nepal (UNMIN).

12. Use the forthcoming Nepal Development Forum to develop a coordinated approach to development aid and peace process support.

13. Facilitate an inclusive and effective process of public consultation in the run-up to the constituent assembly by:

(a) supporting ceasefire monitoring and the creation of democratic space politically, practically and financially, for example, by strengthening institutions such as the National Human Rights Commission;

(b) maintaining pressure on the Maoists to refrain from politically-motivated violence;

(c) encouraging the funding of radio and television content and books and magazine articles by Nepalis that broaden and clarify the debate on constitutional issues; and

(d) providing financial and technical assistance if the government creates a commission-like body to mediate public input.

14. Provide funding for an inclusive and effective process of public consultation, while:

(a) scrutinising funding directed to “grassroots” public education to ensure that projects benefit their target groups rather than merely their implementers; and

(b) avoiding the funding of home-country experts who seek to transplant foreign constitutional models.

15. Provide technical support to intra-party efforts to foster discussion of constitutional issues, without pressing for transplantation of features of donor nations’ constitutional arrangements.

Kathmandu/Brussels, 26 February 2007

Click here to read the full 45-page report (in PDF)

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CPA
Brihát Śhānti Sámjhautā, 2006
(Comprehensive Peace Agreement)








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