The making of a democracy

A road map exists, and the people of Nepal are anxious to get moving. But there are also seven roadblocks to be overcome.

BY SIDDHARTH VARADARAJAN in Kathmandu

FROM every corner of Nepal they came, triumph, hope and anxiety writ large in equal measure on faces as ethnically diverse as any you will find in South Asia. The date was April 28 and the country's House of Representatives, newly restored by Royal proclamation, was meeting behind the imposing gates of the Singhadurbar. In the streets outside, the marginalised and voiceless tried their best to make sure their concerns were not ignored. From the west of Nepal was the Magar Mahila Sangh, its members wearing traditional Magar attire, with their demand for an end to the `Hindu kingdom' ("Hindu rajya chahidey na") and its replacement by a secular state. The Nepal Sherpa Sangh wanted elections to a Constituent Assembly to be held quickly. Then there were Gurungs and Newars and a sprinkling of Rais and Limbus from eastern Nepal. Young men and women from Kathmandu, many of them middle-class and upper-caste, were there in large numbers too, as were representatives of the disabled. Dalit activists made their presence felt. Finally, the leaders of Nepal's vibrant pro-democracy civil society movement - Dr. Devendra Raj Panday, Krishna Khanal, Shyam Shreshta, Krishna Pahadi and Kanak Mani Dixit, besides others - were also present, joining the festive melting pot that had decanted itself on the streets in front of the parliament building in a raucous vigil that lasted until the first sitting ended some hours later with the tabling of a resolution calling for elections to a Constituent Assembly.

One of the most dramatic but least analysed aspects of Nepal's April revolution is the manner in which the Maoist slogan of a nishart samvidhan sabha, or unconditional Constituent Assembly, has managed to capture the imagination of the entire people of Nepal. The Nepali Congress of Girija Prasad Koirala was fixated on the restoration of Parliament but it was only the promise of genuine constitutional change that brought the people of the country on to the streets in their hundreds of thousands.

True, different sections of the population read different meanings into the demand for a Constituent Assembly. For some, it was simply a way of getting even with King Gyanendra, a monarch widely reviled for a host of real and imagined sins, including his supposed involvement in the Royal Palace massacre of 2001. For others, it was something Nepal simply had to do to convince the Maoists to end their decade-long `people's war'. But for many, and probably the majority, the slogan of a democratically elected Constituent Assembly was instinctively appealing, precisely because it was seen as the key which could open the door to a more inclusive and equitable society. Stubbornly turning the worn-out tyres of his wheelchair until he was as close to the Singhadurbar as the police would let him get, Rukmangat Neopani, a disabled rights activist, declared that it was now or never. "Throughout the world people are talking of the rights of the disabled. We are here to make sure Nepal's new Constitution is inclusive in every sense of the word."

Two days later, on the eve of May Day, the House of Representatives unanimously passed a resolution calling for elections to a Constituent Assembly. And the Koirala government has followed that vote up with the announcement that it was reciprocating the three-month ceasefire announced by the Maoists in the wake of King Gyanendra's proclamation restoring Parliament, as well as revoking the terrorist tag from the party and its front organisations.

There is one last gesture of goodwill left for the Seven-Party Alliance (SPA) government to make before the road map for peace and genuine democracy in Nepal starts getting implemented in earnest. This is the decision to release top Maoist leaders from jail and to ask India - which is holding nearly 25 leading cadres of the Nepalese party without charge - also to do the same. To say that the peace road map will soon be implemented, however, is not to minimise the hurdles that lie ahead in any way. The obstacles are legion, both domestic and international, and how they are overcome will depend to a large extent on the maturity and statesmanship that the SPA and Maoist leaderships display in the difficult months that lie ahead.

In order to insulate the proposed election for a Constituent Assembly from any motivated or frivolous legal challenge, the SPA government needs to amend the preamble to the existing 1990 Constitution. The preamble, akin to the basic structure of the Constitution, specifies the four walls within which amendments are to be made, and this includes constitutional monarchy. In order to ensure that the Supreme Court of Nepal - which has shown itself beholden to King Gyanendra in a variety of ways - does not stay the election, the preamble itself has to be amended to take cognisance of the sovereign people's right to decide the nature of the political system they wish to live under. "Once this is done," says Shambhu Thapa, president of the Nepal Bar Association, "there is no principle of jurisprudence that can be invoked by any court to derail the process of elections to a Constituent Assembly."

But amending the 1990 Constitution's preamble is not a simple matter. King Gyanendra's Royal proclamation did not reconvene the Upper House of Parliament, the National Assembly. Either he will have to be prevailed upon to do so or the government, invoking the doctrine of necessity, can summon the Upper House. There are also nearly 20 vacancies that have to be filled, an additional headache that someone will have to attend to.

General Pyar Jung Thapa, chief of the Royal Nepal Army, played a key role in persuading King Gyanendra to step back from the brink and agree, in his proclamation of April 24, to the recall of Parliament and the implementation of a political road map that includes constitutional change. As part of the last-minute negotiations leading up to the King's announcement, Gen. Thapa sent a message to the parties that the Army would report to them once they formed a government. How true Gen. Thapa will be to that assurance, however, remains to be seen, especially since his second-in-command, Lt.-Gen. Rukmangat Katuwal, is someone especially beholden to the Palace.

Prime Minister Koirala has announced a ceasefire but must ensure that the RNA scrupulously abides by whatever `code of conduct' his government develops with the Maoists. This is where the international community has a crucial role to play. A clear message must be sent out to the RNA brass that any deviation from the principle of civilian command will be taken serious note of. If it is part of a sustained pattern of indiscipline, the RNA should be told that its future participation in United Nations peace-keeping operations would be put on hold. For such an approach to work, the international community needs to speak in one voice.

Elections to a Constituent Assembly cannot be treated as just any other election. There are complex issues of representation which have to be sorted out to ensure that every major community and collective in Nepal - the ethno-linguistic groups, the backward regions, the Madhesis, the religious minorities, Dalits, women and youth, not to speak of the disabled - either win direct representation in the Assembly or have confidence that their interests will be protected there. Engineering a balanced and representative composition of the Assembly, without falling into the trap of creating ethnic or communal electorates, will be a major challenge for the SPA, the Maoists and the professional sociologists and political scientists who will no doubt be involved in the process.

To a certain extent, the regional dispersal of ethnic diversities suggests the mission could be accomplished by a fresh delimitation of constituencies based on an increase in the number of seats. Managing this within a reasonable timeframe so that the elections do not get inordinately delayed will be a key challenge.

Once the modalities for the election are worked out, the SPA and the Maoists will have to turn their attention to establishing a mechanism for the sequestering of all armed men and women for the duration of the elections. The Maoists have said they are prepared to confine their fighters to fixed locations under international supervision provided the RNA is similarly bound down. But who or what will ensure this supervision? Ideally, a job of this magnitude and complexity should be handled by the U.N. In Angola, Cambodia and East Timor, as well as in Afghanistan, the U.N. has had varied experience in holding elections in a variety of military environments.

As long there is no big-power involvement, there is no reason why the U.N. cannot accomplish the task of supervising the confinement of soldiers to their barracks, if not the actual polls to a Constituent Assembly in Nepal. The only other alternative is for the SPA, the Maoists and the RNA to work out domestic arrangements, but this seems unlikely at the moment. If not the U.N., it is possible some `contact group' of European countries might volunteer for the job but their involvement is likely to come with far greater strings than the U.N.

As elections approach, cleavages between political forces that are working together will possibly increase. And there is every chance that King Gyanendra will try and take advantage of these either to derail the elections or to ensure an outcome more favourable to the monarchy.

The first cleavage is between the Right and the Left. The Nepali Congress may apprehend the Communist Party of Nepal (UML) and the Maoists forging common ground on certain constitutional questions and this may lead it to forge an alliance with either the Palace or the Army. But the Nepali Congress support base, and especially its youth wing, is increasingly republican and this may weaken the leadership's hold on the party.

A second source of tension could be between the Maoists and the CPN(UML), with the latter apprehending the desertion of some of its support base to the former.

A third source of tension could be within the Maoists themselves. Historically, no insurgency has drawn down without more violent factions emerging and denouncing the mainstream as turncoats. Will the Nepalese Maoists produce their equivalent of the `Real IRA,' which in turn provokes the RNA into ending the ceasefire?

Maoist leader Prachanda has said the doctrinal divisions within the party on the need for `competitive democracy' ended at the Rolpa plenum in 2005. But the proof of the pudding will be in the eating. The history of the Maoist movement in South Asia - with its numerous `ideologically pure' factions, most at loggerheads with each other - does not provide grounds for optimism. And yet the Nepalese Maoists have so far proved to be far more disciplined and cohesive a force than any of their naxalite counterparts in India.

Perhaps one factor that might help to dampen any incipient divisions between parties is the plan to have an interim all-party government - with the participation of the Maoists - running the country during and after the Constituent Assembly elections and until the new Constitution is adopted and fresh elections are held.

Assuming that elections take place and a representative Constituent Assembly meets sometime in 2007, its members are likely to find the task of creating a new Constitution to be an extremely challenging one.

The Indian Constituent Assembly was created on the basis of a partial franchise - by and large, only tax assessees, graduates or property owners were eligible to vote - and had as a constitutional guide the 1935 Government of India Act. Still, this fairly homogeneous, largely elite body took nearly four years to craft a Constitution. In contrast, the Nepalese Constituent Assembly will be far more heterogeneous. They will have the 1990 Constitution as a reference point but that document is so riddled with discriminatory clauses on grounds of religion, gender, ethnicity, language and caste that the temptation will be to go in for a wholesale revision. Especially if the Maoists and the ethno-linguistic groups insist on a robust federalism based on maximum devolution to the country's regions. However, the longer the Assembly deliberates, the greater the danger that the old order will regroup and consolidate itself. The people of Nepal are alert and conscious but they cannot remain in a state of active political mobilisation for an endless amount of time.

But if there is a political imperative to act swiftly, there are many good reasons for the representatives not to hurriedly draw up a new Constitution. Apart from ridding itself of the monarchy, Nepal has the chance of pioneering new forms of inclusive political participation. It can develop political institutions that genuinely empower citizens rather than elites and enact enabling laws to guarantee economic and social rights that elite-driven democracies such as India and the United States ignore - for instance, education, employment, health care and housing. It would be a pity if in the rush to checkmate King Gyanendra, these objectives are sidelined or forgotten.

One of the issues the Constituent Assembly will surely settle is what kind of Army Nepal should have. Shyam Shreshta, editor of the weekly Mulyankan, says Nepal should have an Army like that of Switzerland, a purely defensive but well-trained force that relies more on the involvement of citizens rather than on professional soldiers. There will likely be other views. Once this debate is settled, the task of integrating the People's Liberation Army with the RNA to create a new national Army will have to be undertaken.

If enough political confidence has been established, elements of the PLA might even conceivably get demobilised in the interim and be integrated into, say, a new national police force or militia. Integrating Army units is one thing but resolving the status of commanders and officers will be an entirely different ball game, with the Maoists opposed to those senior officers with strong connections to the monarchy.

If the people of Nepal are successfully to negotiate these obstacles, they will need the unstinting support of the government and people of India. At each stage, the choices India makes can help or hinder the implementation of the road map, beginning with the question of the release of Nepalese Maoist leaders incarcerated in Indian jails. So far, the Indian government has done the right thing, though the process by which it ultimately came out in favour of democracy might have been a little muddled.

Let it not be found wanting in the months that lie ahead.