Excerpts:
Myrepublica.com: Where exactly does the constitution-drafting process stand now and how is it moving ahead?
Nilambar Acharya: Frankly speaking, the constitution-drafting process is in cold storage. The CA is amending the calendar of events for the seventh time. The parties have failed to reach consensus on the major fundamental principles of the constitution. Though there has been some progress, lots of obstructions have also surfaced along the way. Now we only have six-and-a-half months left to draft the constitution. By now, we should have prepared and published the first draft of the constitution. Also, we should have received feedbacks after deliberations on the report. Therefore, a lot remains to be done within the next six months. The process is facing obstructions in one or the other way. But the leaders are hesitating to concede this fact. This situation would not have surfaced had there been no obstructions.
How can the political parties focus their attention on the constitution-drafting process when they are engaged in toppling and forming governments?
Myrepublica.com: What are the major challenges facing the constitution-writing process at present?
Acharya: The first challenge is to overcome the confrontational relationship between the political parties, particularly the major parties.
The second challenge is posed by the existing situation of the country, particularly the lack of progress in taking the peace process and the task of integration, rehabilitation and management of the Maoist combatants forward. Normalization of the country’s political situation and implementation of peace agreements is a must.
The third challenge emanates from the failure on the part of political parties to initiate dialogues among themselves on the constitution-making process, its contents and fundamental principles.
Finally, we should have set the terms of reference of the constitution-writing process, its basic principles and the constitution’s underlying philosophy at the beginning. If we had done that, it would have properly guided all the thematic committees and made it easier for them to complete their tasks as per the given framework. All said, the confrontational relationship between the political parties as well as among other social actors is the major challenge.
Myrepublica.com: In such a situation, can we draft the new constitution within the stipulated timeframe?Acharya: We can’t draft the constitution on time if the existing situation prevails. We can do it only if there is improvement in the situation.
Myrepublica.com: But the political parties say that drafting the constitution is an altogether different process and the relationship between them won’t affect the process?
Acharya: See, we are neither on the moon nor in some outer space. We are in Nepal. The same forces who are engaged in confrontation in the parliament are entrusted with writing the constitution through the CA. Such statements by political parties are nothing but meaningless rhetoric. We have to analyze the ground reality. How can they focus their attention on the constitution-drafting process when they are engaged in toppling and forming governments? Drafting the constitution is not an isolated process. It is deeply linked to the prevailing situation in the country. If there is violence, strikes or obstructions in conducting businesses in parliament, government or in other sectors, it negatively affects the process. It should be very clear that we are not making constitution in a vacuum, in isolation. We are making it in Nepal within given conditions. If these conditions are not conducive, the process may get derailed.
Myrepublica.com: Do you think the top political party leaders’ indifference is a major challenge?
Acharya: It’s not only the top leaders but all the major political parties have failed to initiate dialogue on the constitution-drafting process, its structure and basic principles. Party representatives have not started formal or informal talks on identifying and resolving their differences over the contents and principles of the new constitution. They have organized several rounds of tea reception. They have held bilateral, trilateral and multilateral talks. But they have not held a single meeting to discuss the basic principles of the constitution. It shows that leaders’ attention is focused toward other activities rather than in writing the constitution. The political situation, peace process and writing the constitution are closely interrelated.
Myrepublica.com: It means that the constitution is not going to be ready within the given deadline. If that happens, we will be faced with two options: Announcement of the state of emergency and constitution amendment. Which option is relatively safer?
Acharya: First of all, we should keep in mind that preparing the constitution by May 28, 2010, is a daunting task but not impossible. We can do it in the next six-and-a-half months if we are able to improve the country’s situation and the relationship among the political parties. We have to build up pressure on the leaders to meet the May 28 deadline. We made changes in the CA’s timetable six times in the past. In fact, we have to change our working style and improve relations among the parties. Otherwise, we will make another amendment in the timetable but fail to meet it again. The parties should not try to solve all the problems through the existing interim constitution. They should concentrate on making a new constitution that is fit to address the challenges of the time. It is wise to be forward looking than to be backward looking. Seeking solutions from the new constitution would be a wise move. Therefore, we should not even think about options of state of emergency and constitution amendment. It is too early to think in that direction. It will be an abuse of authority if we activate the provision of state of emergency under the present situation. At present, we should keep in mind that there is no provision to extend the deadline as we do not have a justified reason to do that. Amending the constitution is a legal solution but it will be a violation of the commitment made by the parties to the people. People mandated the CA to prepare the statute by May 28.
Myrepublica.com: But, is six months enough time to complete the task of restructuring the nation into federal units?
Acharya: We should not think that all the state organs provisioned in the new constitution will be established immediately after the promulgation of the constitution. There will be a provision for a transitional period to complete certain constitutional procedures. Certain issues will be addressed during that period. The constitution will set the guidelines, basic principles, some grounds to delineate the country into federal units but it will take time to implement them. The rest of the things will be done as per the legal provisions.
Myrepublica.com: What is the trend of discussions in the CA? Is it too detailed, too specific?
Acharya: Yes, discussions in the CA can be very detailed at times. But that is not a problem. The major challenge is to overcome the differences on the basic philosophies among political parties.
Myrepublica.com: Do you think that the conflicting ideologies of the political parties have proven to be a problem?
Acharya: UCPN (Maoist) holds a certain type of political philosophy while the Nepali Congress has a different ideology. Similarly CPN-UML has its own view. There are basic differences among the parties about the political systems to be adopted in the future. This is a serious challenge. For instance, the NC advocates for parliamentary democracy while the Maoists clearly reject this system. How do we find a common ground between these two forces? There is a big difference on the system of governance that they want. The parties differ on the relationship among the three main branches of the state – executive, legislative and judiciary. You can also find such differences in the preliminary draft report prepared by the CA committee on judicial system. There lies the main problem. To resolve such problems, a mechanism – for instance, the proposed high-level political mechanism – can be instrumental.
The second problem is the non-implementation of peace agreements. We can´t expect adherence to the future constitution when what we find at present is non-adherence to the existing constitution and past agreements. Therefore, the interim constitution, the Comprehensive Peace Accord (CPA) of 2006 and other past agreements need to be adhered to in order to make the situation conducive. If a political party’s army exists along with the state’s army even after we prepare the new constitution, it will be quite an absurd situation. Therefore, these things need to be simultaneously resolved on time. It was accepted that over 4,000 cantoned Maoists are not combatants. But they have not been discharged so far. The property confiscated during the insurgency has not been returned to the rightful owners. The Disappearances Commission, the Truth and Reconciliation Commission and the Commission on State Restructuring have not been established. This shows peace agreements have not been implemented. Violation of such commitments and lack of these institutions has affected the constitution-writing process.
Myrepublica.com: When will the CC prepare its own thematic preliminary draft report?
Acharya: We held concluded discussions about it on Nov 6. But the members have expressed differing views. Then, we prepared a draft addressing the members’ views and concerns. We have distributed it to all the CC members. We have demanded members’ suggestion in writing if they want any amendment, additions or other changes. Let’s see what type of feedbacks and suggestions we receive. After that, we can estimate the timeline.
Myrepublica.com: How much time do you need to compile the preliminary draft reports and concept papers of all the 11 thematic committees?
Acharya: We don’t receive preliminary draft reports directly and immediately after the thematic committees prepare it. The CA holds deliberations and takes decisions on the reports. We get those documents only after that. We have received none of the reports so far. Though seven committees have prepared their preliminary draft reports, the CA is yet to take decision on the reports. We prepare a single draft report compiling the 11 preliminary draft reports only after the CA issues suggestions and directives on the reports. Regarding the time required for that, the more time we get, the better will be the draft report. Earlier, the time slated for this task was two months but now it has been reduced to a month. We have to prepare it within the timeframe given by the CA. The CC cannot take any decisions on its own. I think we need at least a month for this. Or, we can do it even in a shorter timeframe if the CA sends reports resolving all the disputes in the House.
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