Nepal’s real chance is to keep the Maoists in the process and create a framework in which their overwhelming interest would become self-transformation into a democratic party of the left.
By Prof. Andrew Arato
In a previously published article (The Interim Constitution Nepalnews.com, September 29) I emphasized not only the great and generally misunderstood importance of the interim constitution, but stressed the priority of a constitutional agreement to the issue of so-called weapons management. While I did take the opportunity to concentrate on the first issue, I did not really focus on the second probably much more controversial one.
To make my position clear, I think logically the constitutional issue is prior, because parties asked to surrender weapons need to know what political arrangements will guarantee their security and full participation if they do so. But I also consider it an acceptable compromise, given the divergence of positions today, for constitutional and security issues to be negotiated together, allowing trade-offs and bargains between them. What is unacceptable, and can easily lead to a breakdown of the whole peace and constitutional process is the insistence that the Maoists must agree to a full formula on surrendering their weapons and cantoning their troops (whatever that would mean) before the political package can be negotiated.
In Prachanda’s place no one else would accept the “weapon’s first” formula. First, he is asked to trust those whom he fought before, who obviously do not trust him. Why should he trust them? There have been atrocities and violations on both sides, and plenty of people would like to have retribution for very real past crimes and injuries. To him the other side would remain armed, and he cannot regard the national police and the RNA as representative of the nation as a whole. To him they are the private force of the SPA at best, and the king at worst, perhaps the police belonging to the parties and the military command to the monarchy. Second, he is asked to give up his only real bargaining chips in the negotiations, his weapons. His vote, perhaps 15% according to the most recent NDI survey, he does not have yet. His mass support is diffuse. Why should he give away the only chips for which he can get concessions? No rational actor can be expected to negotiate that way, and a rational actor (the SPA hopefully) should not expect the other side to lie down and play dead.
I do not want to underemphasize the risks involved in negotiating even simultaneously the constitutional and the security issues. The first risk is that Prachanda may use his chips to get too much on the constitutional level. This can be avoided if the parties know what their bottom line must be: no power ministries or state secretary positions in defense and interior for either Congress or the Maoists; no more than 30% of the members of the interim legislatures and executive for the Maoists and their allies; a real interim constitution that binds and not loose interim executive arrangements with executive dominance.
The second risk is that in such an arrangement weapons management will not be complete, and that the Maoists will have some considerable number of armed militia still available to influence the elections. There are three answers to this problem: the institutional design answer, the electoral process answer and the civil society answer. As to the institutional design, the interim constitution must be so constructed that even an electoral victory would not allow the Maoists and their potential coalition allies to turn incumbency in the constitutional assembly into a power position that can be no longer be challenged subsequently, deforming the constitution to be made as well as the next electoral process. The design safeguards must all be put in the interim constitution, and that is one crucial reason why that document is so incredibly important.
1. There should be a proportional electoral system minimizing the chances of any party turning relatively fewer votes into a greater number of seats.
2. The making of new constitution should require a high ¾ or so majority, so that no political coalition could impose its view on large minorities.
3. For the period of the constitutional assembly (but probably not beyond) there should be a continuation of mandated power sharing, involving the inclusion of all parties with an over 8 or 10% of the vote in the national executive.
4. There should be a very strong constitutional court set up immediately to police these arrangements, as well as very crucially an amendment rule that would make the changing of the interim constitution itself difficult (at the very least beyond the powers a relatively narrow coalition).
As to the electoral process, there should be a well funded and staffed independent body like the South African IEC in charge of the elections, working very closely with international monitors and supervising agencies. One cannot create a neutral government of experts in the current bargaining process that is highly political, but this type of result could be attained in the narrow area of the elections. It is central however that in the electoral period, the independent electoral commission control not only the counting of votes, but also public security and media access. Thus it should be able to give orders to the police and instructions to the management of radio and TV all in order to guarantee the freedom of competition.
Finally, it will be said that in a country like Nepal, no electoral commission can penetrate and control much of the country’s rough terrain. Whatever the commission controls however can contribute to the relative fairness and freedom of the process, and it would be illusory to demand much more. Activists and organizations of civil society, dedicated to keeping elections free and open, but without working for any party can make a further contribution to reducing fear in the countryside. Nepal may be a more violent country than in some mythologies, but there is also a splendid tradition of non-violence that could be effective against local militias if organized on behalf on democracy and reconciliation, rather than the continuation of the civil war with other means. There is still time for much of the NGO effort in Nepal to be redirected into this all important area.
I have no doubt that together institutional design, electoral process and civil society options can greatly reduce the threat that the CPN (Maoist) would represent to the democratic process, within a comprehensive bargain. And what is the alternative? A bottom line they cannot accept, which says: give up your weapons first, and then you can be included in formulas still undetermined. This leads to the breakdown of negotiations. And then: either a resumption of the insurgency or a pre-emptive coup, or a coup first followed by renewed insurgency and then what? A dictatorship and a ruined economy.
Nepal’s real chance is to keep the Maoists in the process and create a framework in which their overwhelming interest would become self-transformation into a democratic party of the left. Is that impossible? No, it is not impossible. It has happened many times before. It must also happen in Nepal.
(The Interim Constitution – the earlier article by Prof. Andrew Arato)
(The author is a Professor at the NewSchool for Social Research, New York. He visited Nepal in early September and delivered talk programs as an expert on constitution-making and can be reached at [email protected])
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