Constitutional crisis in Nepal

Maoists lose bargaining power with split in the party

Shyam Khosla

A serious constitutional crisis has gripped Nepal. The dissolution of the Constitution Assembly without delivering the fundamental law has created a huge legal vacuum. There is utter confusion in political and administrative circles about the legal entity that enjoys the executive authority. Is it the Maoist Prime Minister Baburam Bhattarai who was declared a “caretaker” Prime Minister by the President though the former never resigned? Or is it the President belonging to CPN-UML who the interim Constitution of 2007 envisaged as the “Guardian” of the Constitution in the spirit of a ceremonial head?
While the Maoists say Battarai’s continuation as Prime Minister is legal, most other parties hold that he should resign immediately as he has no constitutional and legal sanction to act as Prime Minister. They want President Ram Baran Yadav to sack Bhattarai and appoint a consensus Prime Minister. Some Nepalese jurists hold that the interim constitution ceased to exist the moment CA was dissolved. According to them, the doctrine of eclipse had come into operation and the constitution of 1990 automatically stood revived. Interestingly, the 1990 constitution was controversially annulled by a parliamentary resolution in 2006. Legal experts hold that the interim Constitution didn’t envisage such a situation and now there is no platform left to amend it. Political consensus, they say, is the only way to hold elections otherwise there will be chaos and unrest in the country. The situation is explosive what with small and ethnicity-based parties taking to the streets and a faction of Maoists led by Mohan Baidhya Kiran and several other stalwarts of the UCPN-M having launched a new party and threatened to revive the “revolution” (read insurgency) to usher in a people’ republic – a single party state. 
The constitutional crisis followed the collapse of politics of consensus on which the comprehensive peace process is based. Sharp differences over contentious issues like the model of federalism and number of provinces and the basis of their formation delayed the process of constitution writing and ultimately led to the failure to deliver the constitution despite several extensions. Nepali Congress and the CPN-UML pleaded for adopting the Constitution leaving the task of reorganising the country into provinces to a Commission to be appointed. It was torpedoed by the UCPN-Maoists that had joined hands with ethnicity-based outfits. Major political parties made a mockery of the entire process by amending the Constitution to dispense with the normal procedure of constitution making. The new procedure said there would be no debate, no clause by clause discussion or voting. All the discussions would be outside the House without any records and the House would   only be involved when the draft constitution was put up for vote. This and the failure of the major parties to deliver a constitution discredited them all in the public eye.
Nepal that was till recently known for social harmony and communal amity is now divided on narrow caste and ethnic loyalties.  Every caste and ethnic group is demanding a separate province. Some of these groups have now formed a Nepal Federation of Indigenous Nationalities (NEFIN) to press for the formation of 14 provinces. Madhesi groups have, however, raised the banner of “One Mades, One province”. A single province across the entire southern plains is not acceptable to diverse communities that live there. Western Nepal, the poorest region in the country, has raised voice against  ethnicity-based federalism and wants all of its nine districts to be declared an integrated province. Hindu groups comprising Brahmin, Chhetri, Dalit and Dasnami are also against forming provinces on the caste and ethnic basis saying this would encourage divisive elements. These communities have succeeded in forcing the Government to accept that they too were “original settlers” like those who call themselves indigenous.
Recent split in the UCPN-M came after an intense intra-party struggle and tensions. Serious dissensions in the party came to fore ever since the Maoists decided to enter the peace process and fight for a “democratic republic” in 2005-06. Kiran and several other stalwarts of the insurgency were in Indian prisons and had serious reservations on the Parchanda line. Their stance was that democratic republic was a tactical goal and the ultimate objective was the establishment of a people’s democracy. It was under tremendous pressure from the dissident within the party that Prime Minister Parchanda made an unsuccessful attempt to dismiss the Army Chief in 2009 that ultimately led to the fall of his Government. Vice-Chairman of the Party Mohan Baidhya Kiran and several other senior leaders of the party who have now launched Nepal Communist Party-Marxist Revolutionary (NCP-M R) accuse Maoist Chief for betraying the People’s Liberation Army by disarming them and later handing them over to the Army. They also accuse the party Chief and the Prime Minister of compromising the objectives of the “revolution” and acting as “Red traitors”. Kiran had last year accused Parchanda of swindling billion of rupees meant for combatants living in cantonments as part of the peace agreement. He now says working with “corrupt people and foreign stooges” has become impossible. Taking a pronounced anti-India line, Kiran accused Parchanda and the Prime Minister of not scrapping “unequal” treaties that Nepal had earlier signed with India, including the 1950 treaty of Peace and Friendship. He left no one in doubt about his party’s resolve to create “subjective conditions” to usher in a revolution. There are grave apprehensions that the country may enter another phase of instability if the NCP-M R were to resort to violence with the help of cadres that are sulking and itching for action. There are persistent reports that Maoists didn’t surrender all their arms and ammunition and the Kiran-led party may have access to these weapons stocked in secret hideouts. Nepal is on the brink of yet another bout of insurgency. 
UCPN-M that emerged as the single largest party in the Constitution Assembly lacks credibility. The gap between their promises and delivery is huge. They have not returned properties they confiscated from citizens during the insurgency. Maoist Governments unilaterally withdrew cases of murder and abduction against party leaders and cadres thereby rendering the proposed Truth and Reconciliation Commission redundant. With the split in the party and loss of its armed combatants, the party has lost much of its bargaining power and to blackmail democratic parties. The only feasible solution to take forward the peace process is to have a consensus Prime Minister. But Parchanda is adamant to continue with Bhattarai as Prime Minister. Is it because the Maoist Chief seeks the Prime Minister’s protection against his prosecution on charges of corruption and malfeasance?  Now, he faces a grave threat to his personal safety because of the hostility of radicals. Like him, they too have no faith in democratic methods or legal processes. New Delhi is naturally deeply concerned about these developments, particularly the attempts to revive the anti-India bogey on the pretext of New Delhi’s “interference” in internal affairs of the Himalayan nation. India needs to play an effective role by encouraging all stake holders to evolve a national consensus to void instability and chaos.