South Asian Association forRegional Cooperation (SAARC): Prospects for Development
Dwarika Dhungel

The South Asian Association for Regional Co-operation (SAARC) has completed two decades of its existence. The heads of states or governments of its member countries, viz. Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka, once again would meet in Dhaka and reaffirm their faith in the organisation and its charter. Considering the political reality within the individual SAARC nations, and especially the relationship between the two biggest members of the association, one could feel satisfied that the association has survived so far. But its movement in terms of achieving the objectives for which it was formed has been slow and it is criticised as a house of cards or a house built on sand, which can fall apart any time. There is a big stress in the interrelationship between neighbours.
Founded with the objectives, among others things, of promoting the welfare of the peoples of south Asia and improving their quality of life; promoting active collaboration and mutual assistance in the economic, social, cultural, technical and scientific fields; and strengthening cooperation among themselves (member countries) on matters of common interests, the association has identified a number of areas of cooperation among its member nations to achieve these objectives.
The areas identified for cooperation among the member nations are: agriculture and rural development; health and population; women, youth and children; environment and forestry; science and technology; and metrology, transport and human resource development. In addition, working groups have been established in the areas of information and communication technology and biotechnology, intellectual property rights, tourism and energy.
Under the auspices of the association, various regional centres covering agriculture, tuberculosis, documentation, meteorological research and human resource development are working from different SAARC capitals. In addition, three new regional centres covering culture, coastal zone management and information are being established. …..

Published in Nepal News. COM

Issue 19 - June, 2006
By: Dr. Dwarika Nath Dhungel
Posted on: 9/13/2005
Challenges after the Ceasefire

By Dr. Dwarika N. Dhungel

It is too early to say whether the curtain of the stage managed drama started in May of this year and continued for almost four months till the recent declaration of the ceasefire by the outlawed Communist Party of Nepal (Moist) on September 3, with the knowledge and support of the power centers in New Delhi, has been completely drawn and what impact it would have in the on going conflict and to the very fluid political situation of the country. Also one will have to wait for some more time to know which of the actors involved in the Nepali politics would be swept away in what manner as the outcome of the drama. Above all how soon it would contribute to the resolution of the on going conflict or help for a long protected war in the country could still be a pre-mature guess.

Of the actors, the only political force that seems to have taken aback by the declaration of the ceasefire is the current establishment, which is directly headed by King Gyanendra. From all the statements that have come and continue to come from and those who are nearer to the current establishment, it is evident that it felt that 'the carpet has been pulled from under its feet'. And as a reaction, the government decided to snub the call of the CPN Maoist rather than converting it as an opportunity of resolving the conflict, despite the fact that all stakeholders within the country--political parties, civil society and people from the different walks of the lives -- welcomed it and expressed that it would contribute to the lasting resolution of the on-going costly and bloody conflict.

The way the government behaved not only further isolated it from the larger section of the society but also put itself in a much more tight ropewalking situation. It has made its position weaker in relation to the other political actors. The manner in which the fast developments is taking in the political front, it would rather be impossible for the government to resist immense public pressure to respond positively to the declaration of unilateral ceasefire. Thus the main challenge before the establishment now is how to salvage itself from growing isolation within the country. Given the type of the persons it has as its political stalwarts and heads of the administration at both the local and central level, including the recent appointment to the position of the head of the civil service, it would not be able to do so.

The political parties have become part of the Nepalese society over time and would continue to remain so in the future. But despite the fact that seven parties had joined hand and formed a coalition against what they call Asoj tantra or Makartantra (referring to the royal takeover first on October 4, 2002 and assumption of the Chair of the Council of Ministers on Feb.1, 2005) and launching peaceful movement against the King's move, they seem to be in a weaker position to mobilise people in their movement. This is because of their inability to openly accept their mistakes committed while they were in the office. Against such a backdrop, the ceasefire as well as willingness on the part of the CPN Maoist to enter into dialogue with the political parties seems to have boosted the morale of the opposition parties. In a statement, spokesperson of the External Affairs Ministry of the Government of India (GOBI) welcomed the announcement of ceasefire by the CPN Maoist and hoped that the Maoists will contribute towards creating an environment in which a peace process can begin. ‘’ The problems of Nepal can only be addressed on a durable basis through a process of dialogue and reconciliation in an atmosphere free from violence and terror,'’ the Indian government said.

Such developments certainly will have impact in containing the ambition of King Gyanendra, who wants to have his own model of parliamentary system of government and constitutional monarchy, which is nothing but his ambition of being a constructive monarch under the façade of the Constitutional Monarchy established in the country.

The political parties’ position vis-à-vis the present establishment, thus seems to have significantly improved and the current ceasefire and willingness on the part of the CPN Maoist to start the talk with the political parties are welcome developments for those who would like to see turning existing tri-polar conflict into bi-polar conflict as a means to solve the conflict. But if the offer of the CPN-Maoist has afforded an opportunity to the political parties to revive their strength in the political landscape of the country, this has also come as a challenge to them. Perhaps the most important challenge before them is assuring the people that they would not make same mistakes once again and assure the general public that they are one block in the real sense and do not wrangle once again if they do come to power.

Once the major political parties, especially the Nepali Congress and CPN/UML have agreed to discard one of the main pillars of the current constitution, the Constitutional Monarchy, and have expressed their willingness to go for the constituent assembly to draft a new constitution the current constitution is for all practical purpose is dead. And the country, once again is going to have a new constitution with the acceptance of the CPN/Maoist. Like other political actors, there are challenges before the CPN Maoist too. They include: assuring the people that they would honor the right of the people, especially their right to participate in the political process in the competitive manner and right to freedom. Above all the main challenge before them is to assure that the territorial integrity of the country would not be compromised in the name of the giving autonomy to the ethnic groups. How the political parties would safeguard or receive guarantees from the CPN Maoist on these matters during their discussions need to be closely watched and monitored. As silencing of their guns during the peace and post peace process would play a very important role in the successful resolution of the conflict, this is another challenge which they will have to handle ultimately.

The way the drama was staged outside the country which culminated into the call of the ceasefire, paved for the possible dialogue between the political parties and CPN/Maoist and succeeded in further isolating the King from the international community shows that the conflict in Nepal no longer remains purely a domestic issue to be sorted out by the national players alone. It has been internationalized. Above all, the major powers have left India to take the lead in the resolution of the conflict. And from the information received from different quarters it has come to fore that major powers and international community were kept informed of what was going on in New Delhi. And from the contents of the statements that came out from the MEA/ GoI and EU, which is now presided over by the UK, it is clear that they have same voice with regard to the resolution of the Nepalese problem and they have allowed MEA/GoI to take the lead in this matter. It could be recalled that because of the historical and other causes, people of Nepal are very sensitive of the attitude and behaviour of the GoI towards Nepal. Whenever Nepal became weak, they capitalised it in the form of the 1950 treaty or sent the draft of a treaty in 1989, which late King Birendra discarded and instead agreed to reach into compromise with the people of Nepal. Nepalis are keen to see whether the international community in the name of helping to resolve the conflict would leave Nepal completely at the mercy of South Block or ensure that her territorial integrity would not be compromised and she would not be forced to sign a treaty that would limit her sovereignty and territorial integrity. Therefore there is a challenge before the international community too, that is to assure that 'by leaving Nepal at the mercy of South Block, they have and would not forget the territorial integrity of the country'. And every conscious Nepali would like to know that the interest of the country has not been sacrificed by the CPN/Maoist while agreeing for the ceasefire and agreeing to start the dialogue with the political parties.
The Maoist insurgency has become a costly matter to the country and there is a need for all the main actors to buzz from their respective stand and agree for give and take for the sake of the people and nation. But none of the actors have buzzed an inch from the respective stand resulting into internationalization of the matter. Now the international community has taken over the responsibility of forcing a resolution to the conflict. Recent ceasefire is the first indication of this. In such a context, for the conscious citizens of the country and civil society, concern should be not who is going to occupy the chair of running the country, but to see that the territorial integrity of the country is not compromised and freedoms enjoyed by the people of Nepal over the years are not sacrificed. Ultimately people's right to accept or reject the future political structure accepted by the political actors through the referendum also needs to be guaranteed.

Nepal has never been in such a critical threshold as she is now since she started taking present shape since the time of late King Prithivi Naryan Shah. She is no longer in a position to sustain the on going conflict. The call for ceasefire and dialogue between the actors were already overdue. So it was natural for the Nepalese people to welcome the call for ceasefire and wish that the establishment, too, would welcome it.
From all indications, it is evident that the international community, especially the southern neighbour would be playing more aggressive role in the resolution of the conflict. In the given situation, no doubt each of the actors is left to face a number of challenges. If one can't face the challenge, either it would go to the oblivion as a part of the history or face any consequences imposed on it.

Published in Nepalnews.com

ARTICLES PUBLISHED IN NEPAL MONITOR.COM

Debating Constituent Assembly

The question now is how to form a constituent assembly that is fully representative of the social mosaic that is Nepal, writes DWARIKA N DHUNGEL. A serious public debate on this topic must begin immediately, he argues.

More than five decades ago, King Tribhuvan declared in a message to the nation: ‘’Our wish and decision is that the government of our people will henceforth be carried out according to a democratic constitution prepared by the constituent assembly elected by them…’’

We may doubt today that even the King might have a full understanding of the implications of his announcement. But that was in 1951, and it was from Tribhuvan that many in Nepal heard about the notion of constituent assembly for the first time.

Tribhuvan had delivered that famous address to the nation after the fall of the century-old Rana regime. When the King returned to Kathmandu following the New Delhi accord among the Ranas, the Nepali Congress, and Tribhuvan, he helped write promulgate an interim constitution, which paved a way for the constitution assembly.
But Tribhuvan’s promise never materialized. None of the subsequent kings, neither Mahendra nor Birendra, gave the opportunity to the people to directly select their representatives to frame the constitution. Rather, they avoided the election to the constituent assembly and promulgated constitutions written and drafted by the committees formed by these kings, not via popular votes. Therefore, three of the four constitutions, especially that of the Interim Government of Nepal 1951, Constitution of the Kingdom of Nepal 1959 and the Constitution of the Kingdom of Nepal 1990 were nothing but the compromised political documents between the political parties and monarch.

Since the beginning of the Maoists insurgency in 1996, especially after the success of the recent April Revolution leading to the restoration of the dissolved House of Representatives (HoR), the constituent assembly has re-emerged as a major political agenda. The HoR, through its May 18 resolution formally acknowledged that the country would write a new constitution formulated through a constituent assembly.

To recapitulate, one of the paragraphs of preamble to the HoR declaration reads: With determination to fulfilling the peoples' mandate given by the Nepali people as per the roadmap of the seven political parties and the 12-point understanding between the seven political parties and the CPN-Maoist in the peaceful joint people's movement to restore a inclusive state by restructuring the state by formulating new constitution and to restore sustainable peace through democracy, and constituent assembly.

Thus the recent developments in the country, i.e. the resolutions of the HoR and the recent signing of the eight-point agreement between the ruling seven party alliance and the Communist Party of Nepal (Maoists) have made constituent assembly inevitable for Nepal. Today, the Nepali society in general accepts the need for a new constitution drafted and written by the constituent assembly as a political necessity.

The question now is how to form a constituent assembly that is fully representative of the social mosaic that is Nepal.

Sorting Out ProceduresAn ideal constituent assembly is one that represents all sections of society—social and economic classes, ethnicities, geographic regions, etc. The present constituencies, drawn on the basis of population of districts, are not inclusive in terms of minorities as well as regional and ethnic identities or economic classes.

Thus, we must ask: Should the present constituencies continue to serve as the basis for representation of the people or should we draw new territorial basis? Similarly, how to represent the underdeveloped regions of the country, such as the Karnali Zone, which, after centuries of neglect from the Kathmandu, is seeking the right to self-determination?

The other critical issue is inclusiveness. In what manner should the different sections of the society (such as gender, ethnic groups and dalits, and religions) be included in the constituent assembly?
For example, how to represent the Madhesis, the dwellers in the Terai, the southern plains? Sure, we may contest the idea of Madhesis. For some it is merely a citizen living in the southern plains—be it Bahun, Chhetris/Thakuris/Ranas and Newars. For others, it is an exclusive category— people who own large swaths of land and who are known as jamindars (landowners). Yet others may see them as migrants and settlers strictly from India. Many of these people are in a condition of statelessness and lack citizenship certificates.
The exact number of such people could be a subject of debate as some claim it runs into 4 million. The Nepal Sadbhavna Party (NSP), one of the Seven Parties Alliance (SPA) and the part of the present government has raised this issue repeatedly. Now another body, Madesh Mukti Morchha (Madesh Liberation Front) has emerged to take up the cause of this area. The 18th May resolution of the House of Representatives (HoR) did take note of this issue. But the question remains how it will be resolved.

There are several views on the issue of representation in the constituent assembly. One school of thought is that political parties should be allowed to represent both the territories and different sections of the society on the basis of a proportional system. For this purpose, it is suggested, the parties should decide in advance how much percentage they would allocate for the territorial representation and for the different sections of the society. In addition, they should prepare a list of those who would be representing territory and different sections of the society. Based on the total votes obtained, the parties field their candidates for both types of representation on the basis of priority given in the list.

There is yet another school of thought that wants to represent the different sections of the society on the basis of collegiate representation system and also the representation of the territory. This means that from the total number of seats in the constituent assembly, certain percentage be allocated for the different sections of the society. And the voters of the respective groups should select representatives of each section. Whereas, the voters of the specified territory would send their representatives on the basis adult franchise.
In the case of women, both constituencies may be opted. Some gender activists have said they would like to caste their votes for both territorial and sectional constituencies. Similarly, the people of Karnali zone (according to those who are making the cause of this zone) would like to have a few seats reserved in the constituent assembly for their area and they would like to decide whom they would like to send as their representatives.
In order to address these issues, there is a need for a nationwide debate. Some sort of formula has to be worked out based on such debates.

So far the political parties that are now in power have not initiated any formal debate on the topic. They have neither begun a serious dialogue with the different sections of the society, civil society and research and academic institutions nor do they seem to have formally (based on my knowledge) asked these bodies to come up with concrete suggestions on these matters.

I have personally talked about this issue to some knowledgeable persons. None of the insiders thinks that the parties represented in the government or the Maoists have the blue prints on the composition of the proposed constituent assembly.

Eventually, there is every possibility that the expatriates would come and make the recommendation to the government as to how a constituent assembly be constituted without much involvement of the local knowledge and expertise. That may help in the short term, but for democracy to truly flourish, we must find our own answers to our own problems, through open debates and involvement.

Another is the issue of constitution writing process. This has to be clearly spelt out by the concerned actors. What are the procedures the constituent assembly would adopt in writing a new constitution? Who will draft the constitution? Would a drafting committee be formed among the constituent assembly members? Or a committee of experts is formed to write the draft? Similarly, the other issue to be sorted out is: Who will propose and who will approve the final version? In these regards, we need to study the models adopted by the different countries, such as United States of America, India, South Africa etc. and develop our own model suitable for the country, based on its geography and socio-economic mosaic.

It would be desirable on the part of the SPA and the CPN Maoists to solicit ideas from experts in the academia and other areas. They should make a request to the experts to look into all the available models from the perspective of their strengths and weakness and make appropriate recommendations. Also they must take other civil society actors into confidence and urge these people to come up with different alternatives. Whatever model is adopted, the assembly could also perform the functions of an interim parliament.

A Bad Precedence
The procedural issues have already raised serious questions as to the motives and methods of the Seven Party Alliance and the government. The obvious question is: Does the restored parliament have the powers to make declarations even before the constituent assembly elections? The April revolution concluded with a clear understanding that the country would move towards sustainable peace on the basis of the road map of the SPA and their 12- point understanding with the CPN Maoists. One of the elements of the roadmaps and understandings was to go to the constituent assembly and draft a new constitution.

But we all know what happened. Another bad precedence has been set up. The current government as well as the restored HoR, in the name of being the supreme body, pre-empted the power of the constituent assembly, by making the declaration on May 18. The resolutions have already converted the monarchy into a ceremonial monarch. The country has already been declared as a secular state. National political leaders seem to think what they say is what matters in Nepal. For instance, Prime Minister Girija Prasad Koirala suggested in his press-meet on June 14, 2006 in his hometown Biratnagar that the country would continue to have the ceremonial monarch. That may be his personal view. But decisions on such fundamentals must be left to the people to decide. In other words, the SPA and Maoists must have allowed the constituent assembly to decide the future shape of the country's political structure, including the nature of the state-- republican or monarchical, unitary or federal, religious or secular, etc.

Since several monumental changes have already been announced and the government and the HoR are doing homework to operationalize and institutionalize the resolutions and pronouncements, one could ask whether like in South Africa, these declarations will serve as basic principles on the basis of which the constitution assembly would prepare a new constitution for the country.

If so, then the government should have discussed these matters with all who participated in the recently concluded revolution, including the Maoists. And only with their consent, the HoR should have adopted the resolutions, which, then, could have served as guiding principles for drafting the new constitution.
As a result of all these developments, we can say that there are more confusions than clarity with regard to the composition and decision-making structure of the constituent assembly. Without resolving these issues, the country will not have a smooth sailing in the process of constituent assembly elections and the framing of the new constitution. For that to happen, a serious public debate on these topics must begin immediately.

Dwarika N. Dhungel, Ph.D., is the Executive Director of the Institute for Integrated Development Studies (IIDS), a Kathamndu-based think tank institute. He can be reached at pdhungel@mos.com.np
Published in Nepal Monitor on June 22, 2006

Beyond Monarchical Republic
To end the present environment of political uncertainty, caused by de-facto and de-jure rulers, and a monarchical republican system, the peace deal between the government and the CPN/Maoists should take place and constituent assembly process must start immediately, writes DWARIKA N. DHUNGEL.

Nepal’s politics has taken such a turn today that is difficult to distinguish what type of government we have in power in the country. What is going to happen next, now that the seven political parties’ alliance (SPA), with their leader G.P. Koirala as Prime Minister, enjoys the power of the dejure ruler, whereas the Maoists have emerged as the de-facto rulers, and monarchy is in a state of almost non-existence?
The restored House of Representatives has partially annulled the 1990 Constitution. The HoR has done that without amending the Constitution or replacing it through the promulgation of an Interim Government Act of Nepal 2006.

History will judge whether the HoR’s declaration was legal or not. But the fact remains that the country is now being ruled by an all powerful government on the basis of the two fundamental laws, a partially dead constitution of 1990 and the recently made (May 17) proclamation of the House of Representatives (HoR).

The result is that the country currently has a monarchical republican system of government with the ultimate power being exercised by the government headed by Prime Minister. We are also witnessing the open movement of CPN Maoists. Their Janasena (People's army) have come out in the open, with their guns. We see them in mass rallies, including the recently held (June 1 mass rally at Kathmandu), providing security to their leaders. Their indirect participation in running the administration of the country is also apparent. Furthermore, they have expressed their willingness to sit down with the government for a peace talk, and the latest talk concluded a week ago. If the present political course remains steady, there will soon be a new constitution drafted by a constituent assembly elected by the people.

Political actors have begun to assert their legitimacy, and more importantly, power, as massive structural changes in the Nepali society seem all the more promising. As mentioned above, the SPA and the Maoists are running the country in their own ways. The difference between the two is that one of them is back inside Singha Durbar—the seat of government in the country, and the other has come out of the jungles to openly assemble at Tundikhel, the open place, where rallies are held at the heart of Kathmandu. But the Maoists are still not the part of the government, formally.

Another difference is that the SPA, who led the 19 days movements with the support of the CPN Maoists against the rule of King Gyanendra, is represented in the restored in the HoR. But the CPN Maoists are still not the part of the HOR. Nonetheless, the government is not in a position to manage the affairs of the state without consulting the Maoists.

This was an unthinkable political equation only a few months ago.
Clearly, the country, at present, is in a state of transition and fluidity. The situation is so uncertain that anything can happen. Even a small mistake or a misstep of the government of the SPA alliance or the CPN Maoists can wreak havoc in the country. The turn of events could be much more serious (than in the past) in terms of the loss of lives and property.

Internal feuds are still a problem. Indeed, on the basis of behaviors within the SPA, especially with specific reference to distribution of positions, i.e. demand for ministerial positions by the alliance members of the SPA, the difference of opinion among them for the restoration of the local bodies and the opinion difference observed during the election to the Speaker of the HoR, one could say that some cracks have already cropped up in their relationships. In deed, the political parties have not learned from their past mistakes.

Some differences seem to have already cropped up in the relations between the SPA and the CPN Maoists, too. They have voiced differing opinions on the dissolution of the HoR, the convening of a national conference with the participation of the different stakeholders, the scrapping of the present partially dead constitution of 1990, the drafting of an interim government act of Nepal, and the formation of an interim government with the participation of the CPN Maoists. It would be interesting to see how much the SPA-led government would be able to resist the demand of the CPN Maoists, without whose massive support, the 19-day movement could not have been successful.

The public may give them some time so that they could work together to solve the ongoing conflict and establish sustainable peace in the country. The government and the political parties as well as the Maoists would succeed in these endeavors only when they realize that they need each other and that they are not going to get another chance if they miss the present opportunity. The success of the 19-day April revolution (also called Rhododendron revolution, for the revolutionary red color of the national flower) and the May 17 proclamation of the HoR has led to the elimination of the feudal past. In fact, the movement is symbolic of the culmination of the all efforts made so far to get rid of the autocratic regimes (Rana autocracy and Shah Autocracy) and the feudal structure of the country. This is a historic opportunity for the political leadership. So, the SPA and CPN Maoists should find a common ground to work through their differences.

The recent signing of the code of conducts between the government and the Maoists, prescribing norms of behavior among them and towards the people, is one of the steps toward finding a common ground. For all practical purpose, people had the difficulty to move within and across districts due to the existence of two regimes. The government-controlled areas were limited to district headquarters. The CPN Maoists controlled mainly the rural and far-flung areas. The code of conduct would help to ease movement of the essential services, such foods, medicines, construction materials within districts and rural areas without obstructions.

There is a section of the society which feels that the government and the CPN Maoists should fist of all signed the ceasefire agreement and then only signed the code of conducts. However, their willingness to have such a provision in the document is a welcome sign.

What is now required is that they honor their commitments. But we will have to wait till the formation of the monitoring committee to find out whether the government has been successful in implementing the code of conducts, and whether the lives of the people living in the far flung areas has improved as well as the unhindered flow of essential goods ensured.

Another welcome step is the willingness shown by both the government and the Maoists to involve the United Nations in monitoring the peace process. Interestingly, to involve UN, as the Kathmandu Post newspaper reported recently (May 30, 2006) the government had to get the green signal of New Delhi along with the approval of the CPN Maoists.

The important challenge before the government is to successfully lead the country towards the formation of the constituent assembly for drafting a new constitution and to make this body inclusive. It has to be inclusive in terms of the representation of the different sections of the society and regions. In addition, there is a need to delineate its working procedure and the adoption process of the new constitution. These should be the subjects of national debate, along with the attention of the government to start a serious dialogue with CPN Maoists.
Drafting a good and lasting constitution requires forethought and foresight. It may be recalled that the 1990 constitution, based on the principles of multiparty parliamentary system of government with a constitutional monarch, was widely regarded as one of the world’s best democratic constitutions. But over the time, it became clear that it failed to reflect the socio-cultural mosaic of the country as well as its geographical regions of the country. Ultimately, even its framers and proponents began to think it was far from perfect. Needless to say, the 1990 constitution today is almost a dead document. The affairs of the country are partly managed only by some of its provisions.

Professionals have already begun discussions on the provisions needed for an inclusive constituent assembly, one that satisfies the demands of the different sections of the society and regions of the country. So far, the government has not started any discussion with professionals on these matters. Likewise, the SPA is yet to come up with a position paper on these subjects.

The future of the present monarchy has to be decided by the people during the election for the constituent assembly. The CPN Maoists remain adamant on a People's Republic. But for the time being, they insist they agree on a Democratic Republic. The question now is, how should, and how will the CPN Maoists respond should the people, via the constituent assembly elections, choose to retain monarchy? History is replete with examples that revolutionary elements have rarely embraced the outcome of such elections.
Similarly, the SPA, through parliamentary declaration, has already established a Monarchial republican system (or republican system with a powerless monarchy). So, in this context, the challenge before the current government, as it leads the country, hopefully, to the point of election to the constituent assembly with support from the Maoists, is to ensure to the people that they will have the opportunity to express their views on Monarchy without any fear and coercion.

Another major issue to be addressed is citizenship. This remains a thorny issue in the country, especially for many Terai Basis, people living in the Terai area (the inhabitants of the southern plains). Many of these people have a strong feeling that successive governments have ignored this major national issue: millions of people living in this area for ages do not have citizenship certificates. As a consequence, they are deprived of many benefits that come with citizenship, including the exercise of political rights. This issue has been raised times and again, with no results so far. Therefore, the representation of the Terai population in the proposed constituent assembly would be a critical issue. The government needs to address this issue before the election to the constituent assembly. The government’s approach to this issue and its resolution will have profound implications to the national politics.
An environment of fear and intimidation does not guarantee a free and fair election process. Such an election process pre-supposes the management of guns of the warring factions. We will have to wait and see how far and in what manner the UN blue helmets, if they are really called upon, would be able to manage the guns of warring factions and provide a sense of security and fearlessness during the whole election process to the constituent assembly.

Many citizens in the country, especially in the Karnali regions in the mid-western hills, the far western development regions as well as members of the indigenous groups, other disadvantaged sections of the society and dalits, are yet to feel that they are part of the Nepali nation. They still remain marginalised. Hence the issue of inclusiveness is one of the concerns raised by the leaders during the recent movement and CPN Maoists. Their participation in the total constitution making process can't be overlooked.

Nepal is at a crossroad as never before, since the beginning of its modern history in the mid-18th century. The country’s well-being, peace and progress depends upon how the major actors, especially the SPA the CPN Maoists will behave in the national political scene in the days to come. And if they fail this time, they will not be pardoned by the people.

To conclude, for the above to happen, and for the end of the present environment of political uncertainty, caused by de-facto and de-jure rulers and a monarchical republican system, the peace talk process between the CPN Maoists and the government should continue, and they must sign an accord. They should also work with different stakeholders in the process of constituent assembly elections, with no further loss of time. Only a smooth transition can guarantee a stable and sustained peace process in the country.
Published in Nepal Monitor : June 4, 2006

Constituent assembly in Nepal: Representation and Decision Making Process

Dwarika N. Dhungel

The context

People of Nepal had for the first time heard the notion of the constituent assembly as a constitution drafting mechanism in 1951 when Late King Tribhuwan Bir Bikram Shah Dev, had delivered the address to the nation after the fall of century old Rana regime. But none of the three Kings including Tribhuwan, i.e. from Grand father King Tribhuwan to his grand son Birendra gave the opportunity to the people the right to select their representatives to frame the constitution. Rather they avoided the election to the constituent assembly and the two kings, Mahendra and Birendra gave the constitutions drafted by the committees formed by them in consultation with and consent of the political parties, especially in relation to the constitution of the kingdom of Nepal 1990.

Along with the beginning of the Maoists insurgency in 1996, constituent assembly once again emerged as a major political agenda and it is now being accepted by the Nepalese society at large and in particular the major two actors, the Nepali Congress and the Communist Party of Nepal: United Marxist and Leninist, who were involved and participated in the drafting of the partially alive 1990 constitution along with the members of seven party alliance that had raised and successfully launched the April 2006 Revolution against King Gyanendra's direct rule.

The success of the Revolution led to the restoration of dissolved House of Representatives (HoR), which through its May 18 resolution formally acknowledged that the country would, most likely unless un towards incidents happen, have a new constitution formulated through a constituent assembly for restoring sustainable peace. In one of its paragraphs of the declarations' preamble it is stated that

With determination to fulfilling the peoples' mandate given by the Nepali people as per the roadmap of the seven political parties and the 12-point understanding between the seven political parties and the CPN-Maoist in the peaceful joint people's movement to restore a inclusive state by restructuring the state by formulating new constitution and to restore sustainable peace through democracy, and constituent assembly

Representation of Different Regions and Sections

In the light of all theses, the country is now set to have a new constitution through a constituent assembly. And there is demand from all quarters that it should reflect the social mosaic of the country in terms of its composition. In other words, there is a demand for the representation of the all regions (geographical) and sections of the society in the constituent assembly. So the questions now required to address are: whether the present constituency could serve as the basis for representation of or new territorial basis is drawn?

Similarly, how and what manner the underdeveloped regions of the country, such as the Karnali Zone, which because of the century long neglect from the Singh durbar-- the seat of power is demanding the right to self determination, could be represented.

The other issue without whose satisfactory resolution the country might heavily bleed once again is the manner through which representation of the different sections of the society, gender, ethnic groups and dalits and religion would be made in the constituent assembly. In this regard there are however, several thoughts abut this matter. One school of thought is that political parties seeking election to this body should declare in their manifestos about how much percentage they would allocate for the territorial representation and how much for the different sections of the society. And they should be allowed to seek the election as a party and based on the percentage of votes received they would send the representatives to the assembly on the basis of what they have proposed in the election manifestos. However, those who do not subscribe this view would like to see the political parties making the list known before the election and based on the percentage of votes received they should select the candidates from the list published, i.e according to the listing order, on the basis of their agreed formula of proportional representation. There is another school of thought which want that the different sections of the society be represented on the basis of collegiate representation system. So there is a need to sort out this issue.

In order to address these issues, there is a need for a nation wide debate and based on such debates some sort of formula has to be worked out. The size and election to the constituent assembly would depend upon the resolution of these issues. So far the political parties that are now in power have neither began a serious dialogue with the different sections of the society, civil society and research and academic institutions nor seem to have formally (based on my knowledge) asked these bodies to come up with concrete suggestions on these matters.

When discussed with the knowledgeable persons whether the parties represented in the government or the Communist Party of Nepal Maoists has the blue prints on the composition of the proposed constituent assembly, the answer was ' I don't think that they have such blueprints'. Eventually there is every possibility that the expatriates would come and make the recommendation to the government as to how a constituent assembly be constituted without much involvement of the local knowledge and expertise.

Tarai Representation

Of the three geographical regions, Tarai has remained an important area for various reasons. One of them is for its Jamindaris (main source of income from land) of so-called aristocratic families or feudals, mainly those of Bahun, Chhetris/Thakuris/Ranas and Newars. Related is for being the pull factor for the migrants from within and outside the country to come to this area, clear the forest, settle and start farming in the cleared areas.

According to those who are championing the cause of this area, who call themselves Madeshis and the area as Madesh, a large number of such settlers, especially those of the Medhesi stock, other than those migrated from the hills are still in a condition of statelessness due to the lack of citizenship certificate. It may be recalled that during the planting and harvesting seasons of the crops thousands of workers from across the international borders came to Tarai as wage earners and most of them never returned to their native places.

The exact number of such people could be a subject of debate as some claim it runs into 4 million. But the fact remains that this is a problem requiring resolution and in absence of which within a family one would find citizens and non-citizens. Furthermore, those who are poor and have no asset of their own as this contributor itself, for example, has seen and observed in the district of Kapilvastu are being denied of benefits which citizens of the country could avail of. The Nepal Sadbhavna Party (NSP) one of the Seven Parties Alliance (SPA) and the part of the present government has raised this issue loudly. Now another body, Madesh Mukti Morchha (Madesh Liberation Front) has emerged to take up the cause of this area. The 18th May resolution of the House of Representatives (HoR) has does take note of this issue. How this issue would be tackled by the present government and in what manner it would take the CPN Maoists into confidence with regard to this matter is not yet clear. But, unless Madeshi problem, especially that of the citizenship, is dwelt upon before the election to the constituent assembly another revolution may start from this area. Also the issue is so sensitive that needed to be properly and carefully handled.

Constitution Making Process

What procedure the constituent assembly would adopt in the whole process of constitution making is yet to be clearly spelt out by the concerned actors to its stakeholders. Whether it would constitute a drafting committee from among its members or constitute a drafting committee from among the experts and discuss what is proposed and approve for final adoption. In either case the assembly could perform the functions of the Interim parliament. Each of these alternatives has to be weighed from the points of view of merits and demerits. Since a number of persons from the academia and other fields have their own started thinking about these things, there was a need on the part of the major political actors, especially the SPA and government and the CPN Maoists should taken other actors into confidence and made a request to these people to come up with different alternatives including the merits and demerits of each of the alternatives suggested.

Conditional or Non-conditional Election to the Constituent assembly

From all the indications, if no behind the scene deal had been struck among the conflicting parties before the April 24 speech of King Gynendra, April revolution concluded with a clear understanding that the country would move to-wards the sustainable peace on the basis of the road map of the seven party alliance (SPA) and their twelve points understanding with the CPN Maoists. One of the elements of the roadmaps and understandings was to go to the constituent assembly and draft a new constitution. This mean to allow this body to decide the future shape of the country's political structure including the nature of the state, republican or with monarchy, the unitary or federal, religious or non religious etc. And in order to ensure the free and fair election to this body, there has to be some sort of representation including those of the CPN Maoists and other political actors in the government and management of the arms of the rebels and clear delineation of the responsibility of the government army during the whole election and constitution making process.

If these were to be assumed as the natural process for the new constitution making process through constituent assembly, then neither the current government nor the restored HoR in the name of being the supreme body could pre-empt the power of the constituent assembly. Nor in relation to the proposed constituent assembly, the restored HoR could not declare itself as supreme body since many sections of the society who contributed during the April revolution are not represented in it.

Similarly, if one believes in rule of law, the fundamental law of the land could not be partially annulled by the resolution of the HoR. Some other ways, such as the drafting and promulgation of an interim government act 2006 should have been found out and the country's future political set up should have been left to the constituent assembly to decide. But the HoR came up with a resolution that is tantamount to the constitution of the country and declared the monarchy as a ceremonial monarch and has gone to the extent of making this institution totally useless institution but interestingly have agreed to bear its living other expenses without allowing the people to express their views to decide whether or not this institution to stay. Similarly, the country has been declared as a secular country and free from untouchability.

But the Prime Minister G.P. Koirala, based on his press meeting of June 14, 2006 in his hometown Biratnagar, has gone to the extent of indicating that the country would continue to have the ceremonial monarch. These are the fundamentals, which people should have been left free to decide. Since these have already announced and the government and the HoR are doing homework to operationalise and institutionalise the resolutions and pronouncements, one could ask whether like in South Africa, these are basic principles on the basis of which the constitution assembly would prepare a new constitution for the country. If so, then the government should have discussed these matters with all those who participated in the recently concluded revolution including the Maoists and only with their consent the resolutions of the HoR and explanation of the Prime Minister Koirala, whether people may or not like it, could have served as basic principles or guiding principles for drafting the new constitution.

As a result of all these developments, one could say there are more confusions than clarity with regard to the composition and decision making structure of the constituent assembly, without getting rid of all these the country will not have smooth sailing with regard to the election to the constituent assembly and drafting of the new constitution. But to an utter surprise or frustration to many the government and leaders of the SPA and to a certain extent the CPN Maoists are yet to be serious in all the matters related to constituent assembly and drafting of a new constitution.

The end

Kathmandu
June 15, 2006

This article has been send to Nepal Monitor. Com for publication.

April/Rhododendron Revolution: Challenges and Opportunities for Nepal

Dwarika N. Dhungel

Partial annulling of the Constitution of the Kingdom of Nepal 1990 without its amendment or its replacement through the promulgation of an Interim Government Act of Nepal 2006 by a proclamation of the restored House of Representatives (HoR) was legal or not would now be judged by the history. But the fact remains that country is now being ruled by an all powerful government on the basis of the two fundamental laws, partially dead constitution of 1990 and the recently made (May 17) proclamation of the House of Representatives (HoR). She has a monarchical republican system of government; is witnessing the open movement of CPN Maoists Janasena (People's army) with their guns and which is openly providing security to their mass rallies and their indirect participation in running the administration of the country. Furthermore, they are willingness to sit down with the government for a peace talk; and the country would have, most probably if nothing un- expected developments take place, a new constitution drafted by a constituent assembly elected by the people.

As a result of all these developments, it is very difficult to distinguish between the de-facto and de-jure rulers in the country. Both, for all practical purpose, are running the country. The only difference between the two is that the seven party alliance (SPA), that had raised the 19 days movements with the support of the CPN Maoists against the rule of the King Gyanendra is represented in the restored in the HoR and in the government headed by Prime Minister G.P. Koiarala. But the CPN Maoists are still not the part of these arrangements. But without consulting this force, the government is not in a position to manage the affairs of the state.

The country at present is in a state of transition and from all perspectives in a state of fluidity. The situation is so fluid that anything can happen and the country's situation could be much more serious in terms of the loss of lives and property than what happened in the past, if government of the seven party alliance and the CPN Maoists make a small mistake. Indeed on the basis of the behaviors within the SPA especially with specific reference to distribution of positions and with the CPN Maoists, one could say that some cracks have already cropped up in their relationships. And one could think that the political parties have not learnt from their past mistakes. But the people are also willing to give them some time and would like to see that they do not create the problem to each and other and not miss the opportunity given to them to solve the ongoing conflict and establish sustainable peace in the country. They would succeed in these endevours only when they realise that they are not going to get another opportunity.

Because of the fact that the success of 19 days April/Rhododendron and adoption of May 17 proclamation of the HoR, in the annals of the political history of the country could be considered as the culmination of the all efforts made so far to get rid of the autocratic regimes (Rana autocracy and Shah Autocracy) and the feudal structure of the country, the people of the country would not like to see that the SPA and CPN Maoists do not create the problem to each and other and not miss the opportunity given to them to solve the ongoing conflict and establish sustainable peace in the country. They would succeed in these endevours only when they realise that they are not going to get another opportunity and allow the situation of the country to move to –wards its logical conclusion.

For all practical purpose people had the difficulty to move within the district and to other districts or areas due to the existence of two regimes, one that of the Singhdurbar, whose area was limited to district headquarters and that of the CPN Maoists, mainly in the rural and far flung areas. The people were devoid of the basic services. Both these parties have realized this problem and have rightly recognized through the recently singed code of conducts that there was a need to allow the movements of the essential services, services, such foods, medicines etc. and construction materials etc. without obstructions. There is a section of the society which feels that the government and the CPN Maoists should fist of all signed the ceasefire agreement and then only signed the code of conducts. However, their willingness to have such a provision in the document is a welcome sign. What is now required is that they honor their commitments. But we will have to wait till the formation of the monitoring committee to find out whether the government has succeeded to get codes of conducts implemented and the lives of the people living in the far flung areas has become, to some extent easier as a result of the flow of goods of essential nature. With regard to the formation of the monitoring committee, it is interesting, as reported in the Kathmandu Post news daily (May 30, 2006) that the government is willing to request the UN for this job. But as reported in the newspaper, before it could do so, the government had to have the green signal of the government of India along with the approval of the CPN Maoists.

It may be recalled that the constitution of Nepal 1990 that is based upon the principles of the multiparty parliamentary system of government with a constitutional monarch, when promulgated, was considered to be one of the world’s best democratic constitution. But over the time, it became clear that it neither failed to reflect the socio-cultural mosaic of neither the country nor its geographical terrain nor ultimately satisfied its own propounders. Therefore, it is now almost a dead document and the affairs of the country, is partly managed by some of its provisions. The country is going to get a new constitution. But unlike in the past and as already indicated above if nothing unexpected developments take place, the constitution would be prepared by the constituent assembly elected by the representatives of the sovereign people of Nepal. The million dollar question that is yet to be answered with regard to this body is that how it could be made inclusive in terms of its composition – a composition that has to be inclusive in terms of the representation of the different sections of the society and regions. In addition, there was a need to start thinking and working on its working procedure and the adoption process of the new constitution. These should have been the subjects of national dialogue along with the attention of the government to start a serious dialogue with CPN Maoists instead of diverting its attention to other matters that should be left to the constituent assembly to decide. Professionals have already started thinking about these things in their individual capacity or as a member of a professional group. But the government, from all the information neither received, has nether started the homework nor has started discussing with the professional groups and knowledgeable persons. Likewise, the SPA, while launching the movement against the direct rule of the King should have assigned a group of professional or requested research institutions to prepare a paper on these matters, is yet to come up with a position paper, which they should already have for discussions with the CPN Maoists and civil societies and neither other stakeholders without whose consent and concurrence neither the CPN Maoists nor the government would be able to manage the election to the constituent assembly effectively.

Citizenship remains a major thorny issue in the country especially people living in the Taria area. There is a strong feeling among those who represent the interest of this area that there are millions of people living in this area for ages do not have citizenship certificate. As a consequence they are devoid of many benefits due to the citizens of a country including the exercise of political rights. This issue has been raised times and again, with no results so far. Therefore, this would once again, emerge as one of the issues in relation to the representation of the Tarai population in the proposed constituent assembly. The government has to solve this problem before the election to the constituent assembly. How it would be solved will have implications in the national politics.

The CPN Maoists have a clear agenda with regard to the future political structure of the country. They stand for the People's Republic but for the time being; have agreed for the Democratic Republic. For all practical purpose the institution of Monarchy is now dead after the creation of the Monarchial Republican system through the HoR proclamations. Nevertheless, the future of the present monarchial republican system has to be decided by the people during the election for the constituent assembly.

In addition, each of the stakeholders will have to have a free and fair atmosphere in which they could seek the voters support to their agenda. This pre-supposes the management of guns of the warring factions. In this regard, as reported in the news, which has already been referred above, that the government, the CPN Maoists and India have given their nods to seek the support of the UN. We will have to wait and see how far and in what manner the UN blue helmets would be able to manage the guns of the warring factions and provide sense fearlessness during the whole election process to the constituent assembly.

It may be recalled that the geographical regions, such as the Karnali regions in the mid-western hills, the far western development regions and the members of the indigenous groups, women and other disadvantaged sections of the society are yet to feel as a part of the Nepalese nationhood. It is one of the issues raised by the leaders of the recent movement and CPN Maoists. Similarly, the dalis or untouchables, the ethnic groups and women are still in a state of marginalization and their participation in the constitution making can't be overlooked.

To conclude, Nepal ever since the beginning of its modern history in the mid-18th century, has never stood at such a cross road as she is standing now. Whether she would be able to move to a right direction and ensure it as a safe place for the present and future generation of the different sections of the society and regions, would depend upon how the major actors, especially the SPA the CPN Maoists would behave in the national political scene in the days to come. And if they fail this time they would be neither pardoned nor have another chance. Above all the country would enter into such a deeper crisis situation, to which she has never been.
The end

Kathmandu
May 31, 2006

PS: This article has been send to Nepal Monitor. com for possible publication