“A country wedged in between two giants, Nepal needs a strong state to preserve its independence”

Professor Andrew Arato

Andrew Arato is a Professor at the NewSchool for Social Research, New York . He has visited Nepal and delivered talk programs as an expert on constitution-making. The American scholar and constitution expert has been closely observing the ongoing peace process and constitution making process in the country. Excerpts of an interview he gave to Sanjaya Dhakal of Nepalnews. 

You have been keeping tab on the peace process and constitutional development of Nepal in recent months. How do you react to the two swift and successive amendments to the interim constitution?

In a previous guest column “ Interim Crisis or Interim Learning?” (Nepalnews.com, February 26, 2007) I wrote of Nepal’s Interim Constitution as an important achievement that contains the seeds of crisis, and of the possibility of amendment as crisis avoidance and crisis management learning mechanism. Since then Nepal indeed has had protracted constitutional crisis. Thus I have no problem with the swiftness of the two constitutional amendments, but have serious doubts as to their contents. Some of the new elements change nothing and thus represent merely illusory forms of action. Others, however, threaten to reduce the constitutional assembly to insignificance, and that is a serious problem. The one change that could be important is that now there seems to be a new mechanism for removing the Prime Minister through a vote of no confidence. But once every six months is an absurd restriction, and so is the 2/3 requirement. Moreover, the very unusual idea of the Interim Constitution (somewhat ambiguous in the text) that the old government stays after the election of the constituent assembly seems to be untouched. (Art. 44 admittedly could require that a new government constituted by consensus or 2/3 of the assembly, but this is the less likely interpretation).

There are calls from among ethnic groups that the country must adopt fully Proportional Representation electoral system for Constituent Assembly (CA) even though interim constitution has ensured Mixed system. How do you find their demands? Do you agree that current system will not ensure their appropriate representation at the CA?

There is much confusion in Nepal about what PR means. What it generally means elsewhere is that parties receive seats in proportion to their percentage of the vote. Initially the Interim Constitution (63 3a,b) provided for a little under ½ such seats in a mixed system that also had a little under a half of single member district seats elected in traditional first past the post elections. But many of the ethnic groups mean by proportional representation a system that reproduces in the legislature the gender, ethnic, regional and perhaps class make-up of the country, a kind of picture representation, that has been practiced so far by powerless supreme soviets. When elements of such representation are introduced into competitive party systems, the several parties tend to control the female, ethnic and regional deputies they nominate the same way as the one party controlled them in soviet type societies. The system never produces genuine participation by those previously excluded. It is moreover technically very difficult to reconcile with competitive, democratic elections if it is fully generalized. That is why the supreme soviet is the only full blown version; its members were elected on single, non-competitive slates (generally single member districts). The scheme however is entirely irreconcilable with competitive single member districts, and thus consistently the Nepali advocates call for all ”proportional” seats. But they will have a very tough time making a rule like the one adopted in the recent electoral law in June (providing for: 1/2 women, 18.9 Janjatis, 15.6 Madhesi, 6.5 Dalit, 15.1 “other”, 2 backward region) compatible with party independence, and competition among lists. And if they manage to do so, the results will predictably not be what the advocates hope for. Who is going to control for example the Maoist women, Dalits, Janjati and Madhesi who will be carefully screened and selected if not Prachanda and his colleagues? And so they should, because otherwise there would be chaos and ungovernability given Nepal’s complexity. The same for Congress, UML…etc.

Paradoxically, the current system, or the one before the electoral law just passed, if properly used, could have guaranteed more serious differentiated representation, if perhaps at the cost of less governability. Real PR (rather than the nonsense spoken about in Nepal) does not guarantee ethnic pluralism, but makes it more likely by setting up low thresholds for party representation, and therefore the formation of new parties. Thus e.g. a Dalit party would have been possible to form, electing Dalit representatives controlled by that party rather than the heads of the big parties of today.

Finally, for a constituent assembly, one does not even need a pictorial representation of the proper ethnic proportions of society to make the relevant interests present in constitution making. All that would have been needed was a rule of fair representation on all the committees preparing the constitution and its parts (generally: the constitutional committee and its sub-committees, both involving the legal experts of all parties and groups) along with consensual decision rules. That would guarantee that no text could emerge that would not incorporate the plurality of interests. The fight has been basically about the wrong thing, though of course the proportions of the assembly may decide how the committees will be constructed. I think however that civil pressure should have concentrated on the essential point, rather than the issue of pictorial representation that will not lead to the desired result.

They have also demanded federal system of governance based on ethnicity. Will that be a good idea for a multi-ethnic, multi-regional and multi-cultural country like Nepal?

The issue in any case should have been left to the freely elected constitutional assembly to decide. It was absurd to include a declarative statement on this matter in an amendment, though it is pretty meaningless as it stands. My personal answer is generally negative on the bases of the Iraqi experience, where an ethnically based model conceded to the Kurds in their interim constitution is by now almost irreversible and is tearing the country apart. People will point to India where today in effect federalism coincides more or less with ethnic and linguistic divisions. Two points need to be made regarding the comparison. First, the founders of Indian democracy strongly battled such a model, and it emerged during a series of reforms long after the system was consolidated. And second, India’s federalism, was, especially in the founding epoch but even now, highly centralistic with the states having relatively weak powers, with very little input into the management of the center. Thus the question is not only what kind of federalism, ethnic or administrative (I side anyhow with administrative models) but also what division of powers, and how much power do the units have in the determination of national policy.

Let me of course note the obvious. Nepal is not India, but a middle sized country wedged in between two giants. It needs a strong state to preserve its independence, as the 18th century state makers recognized in a very different context. That state should now become a just and representative state, but it should not be destroyed. Probably it should be strengthened.

What about the decision of the eight parties to insert a clause in the interim constitution (through second amendment) stating that the interim parliament itself can now abolish monarchy if it finds that the latter is conspiring to derail the CA polls? Don’t you think such vital questions should be left for the elected CA to decide?

The decision is nonsensical as a legal matter, as a question of legality. The interim parliament or Legislature-Parliament always had the right to pass any amendment (Art. 148-1) to the text of the Interim Constitution it wanted, including the abolition of the monarchy. Nothing in the text is unamendable. Thus it just gave itself the power by 2/3 vote of those present (148-2) to do by 2/3 vote of those present what it always could have done by the very same 2/3 vote of those present. One vote does not strengthen the authority of the other if it ever comes to using the totally superfluous provision. It matters not at all that in the one case the amending power is used and in the other a special legislative power. As a matter of legitimacy however the amendment seems to indicate that its authors dimly understood that they did not have the right as members of the appointed rather than elected interim legislature to abolish the monarchy: only a referendum or the elected representatives of the people, the supposed sovereign had the right, and this is what the Interim Constitution (Art 159-3) provided for. But if they did not have the legitimacy to do the thing, they also, for exactly the same reasons did not have the legitimacy to authorize themselves to do it. So the amendment is either superfluous or illegitimate, take your pick. I wonder what the many international constitutional experts in Nepal were doing if they have not noticed, or pointed out this fairly obvious matter.

Now I do understand how it all could have happened. The Maoists, squeezed by the Madhesi, needed republicanism as a mobilizing device, now rather than later. So they wanted the interim parliament to declare the republic now. Congress, or its top leader opposed this, probably not for the good reason that only the people or their representatives have the right to abolish the monarchy, and in the end they agreed on this absurd compromise. They could both declare victory to their supporters, and the Maoists could go on agitating that the provision be used, while Congress continued to delay. Absolutely nothing changed.

Where do you find Nepal’s peace process heading?

For this I would have to be in Nepal, to answer. I have always been optimistic, because I think the Maoists have much to gain from becoming a powerful reformist party of the left, and, given this fact widely understood, because there is no popular support for any kind of aggressive action against them. What may change the situation is the kind of ethnic violence that not knowing Nepal, well, I did not anticipate. From this point of view the amendments to the constitution may buy some time, but who knows if ethnic dissatisfaction will again erupt in a really dangerous way. If it does, then none can afford to disarm.

The transitional period of Nepal is getting prolonged (as the promised CA elections could not be held in June and has now been put off to November). Is it healthy? How do you react to the delay in the elections?

I was quite unhappy about the probably unconstitutional delay (regarding the earlier scheduled CA elections in June; Interim Constitution 33a) because in this period Nepal has a weak government, and a constitution made by elites that does not have democratic legitimacy. It is a constitution with largely democratic contents, fully capable of managing a democratic transition, but it has little democratic legitimacy. The new amendments do not help much, given the fact that the interim parliament remains a co-opted one, government is unpopular but nearly irremovable, and many groups do not feel represented at all. Only elections, a government rooted in a freely elected assembly, and a process of democratic constitution making could remedy these weaknesses. It does not matter now who is to blame for the delay: the insufficient legitimacy generated by the makers of the interim constitution, the eruption of ethnic demands, some reasonable while others less so, or the Maoists engaging in a bidding competition with some ethnic militants. Any further delay would be very harmful to all of their interests, because at some point someone will call for a policy of the strong hand, and the people (or some of them) will listen.

The Interim Constitution stipulates that each bill relating to articles of constitution will have to be passed by two-third majority by the CA (except of course the one regarding the issue of monarchy, which can be settled by simple majority). How practical is this provision especially given the increasingly divisive politics?

It is highly peculiar that a simple majority should be enough to change the symbolic structure of the state, while it takes 2/3 to produce a new regime. But I completely agree with the 2/3 rule, at least. A constitution should not be the law of the majority, and a fair rule requires a consensual process – therefore good faith bargaining, and fair compromise. I too worry about the kind of assembly that would emerge if the interests of Nepal were pictured in an exact way, but party politics will likely reduce the complexity. In the end a good process could deliver a good result. The longer it is delayed however, the more the antagonisms are allowed to become very sharp, the more difficult it will become to come to an agreement on the basic issues.

(Professor Arato can be reached at Aarato1944@aol.com )

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