Another last chance for Nepal's constitution

By Dhruba Adhikary

KATHMANDU - Members of Nepal's Constituent Assembly have voted to keep their jobs and give incumbent Prime Minister Baburam Bhattarai an opportunity to keep the peace process going, giving a glimmer of hope to citizens waiting impatiently for a new statute. The deal comes with a catch that angers some in power.

A constitutional amendment, passed on Tuesday, extends the life of the current 601-seat assembly by six months. The catch is this: after 10 amendments to the interim constitution issued in January, 2007 - and four of these providing for term extensions - the Supreme Court ruled on Friday that the 11th, which was voted in by 505 deputies with three dissenters, will be the last. Should deputies fail to deliver a new constitution by the end of May, the assembly will be dissolved, necessitating a fresh poll or a plebiscite.

Dissolution of the house in failure after it has consumed four years of political energy would be an ungainly result for Nepal's electorate, who during the elections in April 2008 expected that a new constitution would be forged within two years. The delay up this point is already enough to make Nepal's neighbors jittery.

The court's initiative has earned admiration from the public, but criticism from some politicians who feel the judicial system has overstepped its boundaries. First among these is Jhalanath Khanal, former premier and chairman of the Communist Party of Nepal - Unified Marxist Leninist (CPN-UML). The other two major parties are the Unified Communist Party of Nepal-Maoist (UCPN-M) and the Nepali Congress.

However, for Bhattarai, who succeeded Khanal as prime minister three months ago, the latest extension is a chance to prove he can succeed in drafting the constitution where his predecessors since the April uprising of 2006 have failed.

Bhattarai's leadership continues to receive support from India, Nepal's influential southern neighbor. This was renewed on Sunday when India's powerful finance minister, who is considered an old Nepal hand in Delhi, came to Kathmandu for a day-long visit to sign a taxation agreement.

The premier also continues to enjoy the confidence of Maoist leader and former prime minister Prachanda, who is chairman of Bhattarai's UCPN-M. However, other prominent Maoist politicians aren't toeing the line.

Vice president Mohan Vaidya and some other comrades distanced themselves from Bhattarai just days after he was sworn in as prime minister in August. Their resentment stemmed from a government decision to symbolically handover the keys to Maoist arms containers to a special committee tasked with responsibility for integration/rehabilitation. To Vaidya, that decision was a betrayal and amounted to a humiliating "surrender" of the entire apparatus of what they continue to call the PLA - People's Liberation Army.

Such open hostility from a formidable faction of his own party has made Bhattarai shaky, and his initiatives to facilitate formal closing of camps sheltering about 19,000 former combatants has not gone as smoothly as initially expected. His promise to have the farmland and other landed properties seized by the Maoists during the years of insurgency (1996-2006) returned to their rightful owners is also facing fierce resistance from rival comrades in his own party.

While Prachanda seems to have assured Bhattarai of his continual support, the premier appears hesitant to rely on such assurances. Bhattarai has given several ministerial berths to junior coalition partners - a front of several fringe, pro-Indian parties, making him an unpopular prime minister who leads an oversized government consisting of 49 ministers. This number breaks all previous records. Bhattarai once publicly conceded that he did not recognize - or know the names of - all of his ministerial colleagues.

He is also facing accusations of squandering public funds on nearly three dozen additional personal "assistants" he hired for his official residence. Praise Bhattarai earned after taking power for preferring a cheap "Made in Nepal" SUV was lost within days when inquisitive media uncovered that the plant users parts imported Indian parts, with little local value added.

Meanwhile, several of Bhattarai's erstwhile supporters have openly accused him of surrendering the country's national interests when dealing with foreign governments.

They cite an investment protection agreement he signed in Delhi in October that observers say was lopsided in India's favor. This despite his the premier's pre-visit pledges that he would not bend to Indian pressure.

A leading lawyer, Balkrishna Neupane has found several flaws in the agreement and filed a public interest litigation at the Supreme Court. The team of lawyers he led has convinced the court which has, in turn, issued an order to the government on Monday to prevent immediate implementation of the agreement.

The court order is a clear setback to Bhattarai that could affect his aspirations to lead the government that oversees the drafting of the new constitution.

The Constituent Assembly is expected to draw up a statute that formally replaces the 1990 constitution, which was written to retain the tradition of monarchy. The present, interim statute was enacted in the aftermath of a political movement that compelled the then king, Gyanendra, in 2006, to restore the parliament he had earlier dissolved.

In the five years Nepal has been waiting for a new constitution, various committees and sub-committees have been formed but the CA has been unable even to agree on the basic foundation of the proposed statute, such as whether the country should have a democracy or a "people's democracy" as envisaged by the communists.

Maoists continue to reject a parliamentary system of democracy whereas the Nepali Congress, the oldest party with democratic credentials, and its allies are in favor of retaining the format. If the previous parliament, with a monarch, was based on the British model, the proposed one, without monarchy, could be comparable to the existing Indian model.

At the end of three and a half years, the assembly has not been able to produce even a first, consolidated draft. The previous three extensions of the assembly - first for a year and then two of three months each - could not resolve differences on issues like federalism, presidential or prime ministerial formats and election procedures.

Friday's court ruling, therefore, came with a louder voice, essentially exerting pressure upon deputies to act, and act swiftly. Under Article 64 of the interim constitution, the assembly's term is fixed for two years, but an addendum says that if the constitution-making process is interrupted by declaration of emergency, it can be extended by six months - and no more. What the court said on Friday, in a legalistic language, was that the six months' extension could be used even if there was no emergency.

"Obviously, it is not for the court to declare a state of emergency," said Badri Bahadur Karki, who once had a stint as the attorney general of Nepal. In his view, the court now wants the assembly members to be serious or else they would lose the public confidence.

Analysts say that since the assembly has already lost its political, if not legal, legitimacy, then any statute that it may be eventually able to produce by the extension is bound to be discredited. Another renewal of assembly's term after this one - without a fresh election - would be an act of political adventurism, Murari Sharma, a former ambassador to the United Nations, said in a recent newspaper article.

The immediate issue troubling the public is whether a democratic constitution is feasible at all under the shadow of a Maoist-led government. It is common knowledge that communists see the politburo and the constitution of the communist party as supreme. Observers also suspect that more radical segments of Nepal's communist have not abandoned the idea of a "great leap to a Maoist state" and that their current engagement in a democratic process is a tactical move to accomplish this.

Emerging regional trends are compounding the fluid political situation. Despite a growing volume of bilateral trade, India and China continue to be suspicious of each other. The United States has found it expedient to support India, which is a familiar line with the broader American policy of containment of China.

The tacit support of "Free Tibet" campaigners is a striking example of this although the US and India, like Nepal, formally continue to be guided by the "one China" policy. After India, Nepal has the largest concentration of Tibetan exiles who fled their homeland since 1959.

Even a stable Nepal would not think of antagonizing China on the issue of Tibet, with which Nepal shares a 1,400 km long Himalayan border. And Nepal is palpably unstable now.

On November 21, US Ambassador to Nepal Scott DeLisi denied allegations that the American position on Tibetans amounted to an "anti-China" stand. He argued that the existing US position only reflected the policy of placing importance on "upholding universal values, rights and principles." Whether such statements can dispel long-held fears remains a matter of conjecture.

Politicians who remain unconvinced by the US denials include Chandra Prakash Mainali, a prominent left-leaning leader who now heads one of the smaller parties in the constituent assembly. He suspects that a "grand design" is at work, and those associated with it may be undermining - wittingly or otherwise - the usefulness of Nepal's sovereign existence between two huge Asian nations.

"While Maoists in India continue to be targets of armed security units, Bhattarai and his faction of Maoists in Nepal are getting Delhi's support to be in power, isn't this a contradiction ?" Mainali wondered, in a interview with Asia Times Online. Not only that, he said, Bhattarai has given a ministerial post to a person who openly campaigned for Free Tibet. Would this have been possible without external hints or encouragement?

In Mainali's opinion, If such activities are not restricted, China's concerns in the immediate neighborhood will not be restrained. Beijing may find grounds to further enhance its presence in Nepal - in number of ways.

High ranking visitors from China have always reiterated Beijing's consistent position that the Nepali people are capable of handling their own domestic political affairs; they do not need outsiders' help. This Chinese belief might be announced one more time next month when Premier Wen Jiabao is scheduled to visit Nepal. While India as a Hindu majority country largely appreciates this principle of non-interference, the rulers and bureaucrats in Delhi, however, appear to pursue a different - and more anachronistic - policy.

Source: Asia Times Online