Cohering UDMF Agreements with the 5th Amendment of the Interim Constitution of Nepal
Prakash Bom
June 28, 2008
First of all, no government agreements with any political party or organization or foreign government can bypass the electoral right of people´s representatives either in the transitional Constituent Assembly or in the future Parliament of a new democratic Nepal. This is the most hard-earned people´s mandate of half a century democratic struggle and sacrifice, which has been finally established by the successful Constituent Assembly elections. The mandate is fundamentally set to keep political leaders, ruling elites and their cadres back on the tacks of competitive electoral democracy against their overbearing arbitrary discussion making feudal tradition in the government.
Madhesi lawmakers´ demand to include agreements of Madhesi alliance United Democratic Madhesi Front (UDMF) with the interim government in the 5th amendment of the interim constitution for the ratification by Constituent Assembly is legitimate. It is the most sensible move of Madhesi lawmakers in Constituent Assembly as a democratic practice. However, the agreements have to be coherent to the 5th amendment of the constitution. If all the agreements are not coherent to the bill of 5th amendment then their agenda must have a separate bill for Constituent Assembly to vote on. But, in any case, they must be ratified by the Constituent Assembly because just the agreements between the government and UDMF themselves cannot be statutory law.
The question is whether the major element of agreements such as formation of autonomous states needs to be rectified by the Constituent Assembly under the interim constitution for the immediate implementation or it has to be the principle element of restructuring states under the new constitution. If the former is true then we must find out how coherent such agreements are with the current constitutional crisis from the perspective of the primary objective of Constituent Assembly. We must acknowledge that the 5th amendment of interim constitution is the necessity without which a new legitimate government cannot be formed in order to take its primary responsibility in coordination with Constituent Assembly for drafting a new constitution of federal democratic republic Nepal.
The declaration of federal democratic republic Nepal by the first historic session of Constituent Assembly has mandated the restructuring of the state to implement federal government system. But what federal governance structure Nepal will adopt to its best implementation that can keep national integrity intact is the responsibility of Constituent Assembly. In my opinion, CA representatives have not even started brainstorming on how the electoral mechanics of federal government system functions in relation with the central to the states and local governments. The logic of expediency is that as much as states are autonomous and have right to self-governance that much their local governments are autonomous and have right to self-governance. If this provision is set in the constitution then national integrity remains intact. But the question ´how?´ should be thoroughly scrutinized in Constituent Assembly.
The logical process of restructuring state under the federal government system is first to draft a constitution or a blue book of legislation. But the constitutional provisions of the federal state regarding its structure and functionality must be decided with the consensus vote of the Constituent Assembly. It is therefore premature to include agreement such as UMDF´s for autonomous state for interim government to set the guarantee prior to the legislative process of Constituent Assembly. However, such agreements must be processed under the scrutiny of drafting constitution with the simple majority vote of Constituent Assembly (as per the proposed 5th amendment for simple majority provision).
However, the agreement to declare all those individual Nepalis martyrs during Madhes movements cannot be the part of the constitutional crises that the nation is going through. But it should be the responsibility of the interim government to honor martyrs providing proper compensation to their families. If the interim government could not do it then the new government should do it.
As a matter of fact, the constitutional provisions of the 5th amendment as per the recommendation of six-member-SPA-task force can be the basis for the practice of competitive electoral democracy in the legislature level for a new democratic Nepal. What 5th amendment is trying to establish a provision for legislature to vote on issues for resolving political crises and a method for implementing peace process to a logical end. Electing president, vice-president and prime minister with the simple majority vote of the legislature - Constituent Assembly that allows the formation of an executive body of the government or cabinet is to introduce a new chapter in the modern democracy of Nepal. This is what can make the old-fashioned Anglo Indian Parliamentary practice obsolete.
Similarly, the Madhesi demand for one Madhes one province must be brought to the ballot of the legislature as separate bill but not part of the 5th amendment. Madhesi political parties attempt to include their demands in the 5th amendment is to force their agreements without the scrutiny of the people´s representatives in Constituent Assembly. The most democratic approach to address their agreements is to table a separate bill in the legislature for vote.
It will be historical mistake to include Madhesi agreements in the purposed 5th amendment of the constitution against the current political process for establishing the practice of electoral democracy. It is to first lay the cornerstone of democracy for the electoral institutional development of the legislature – Constituent Assembly with the provisions of 5th amendment. Then after a separate session of legislature must be called upon to ballot Madhesi demand for Constituent Assembly endorsements.
Since the Madhesi agenda has become a political crisis it can neither be excused with what have been agreed upon nor it can be outright discarded. It needs the vote of the legislators of the Constituent Assembly. It deserves a new session of the Constituent Assembly. Therefore, both Maoist and UML rejection for one Madhes one province is also immature because political issue such as must be brought to the attention of the people´s representatives in Constituent Assembly for vote. Such step should finalize the crises whether what agreement UNDF had with the interim government or with the almighty for the forceful superimposition of Madhesi homogeneity.
It is politically dangerous to express solidarity with Madhesi agenda especially for one Madhes and one province by any political parties without the proposal of bringing their agenda to the legislature of the Constituent Assembly. Those parties, which intend to do so for the dirty politics of power, will eventually undermine the integrity of nation and violate the civil liberty and rights of other indigenous Nepali both ancient and recent settlements from being able to form their own federal state with autonomous and self-governance provisions.
As Maoist leader Dr. Babu Ram Bhattarai has pointed in retrospect that as per agreement the demand of Madhesi autonomous state ought to be addressed by the new constitution for which legislators of the Constituent Assembly have been elected with the successful historic elections of CA. Therefore, it is legitimate demand of Madhesi legislators that Madhesi agreements must be set to the motion. But the major political party must be able to scrutinize the demand for its coherence with the 5th amendment that is being proposed. In my opinion, it is a different political issue for a new constitutional provision that is ought to be addressed while restructuring the state. Therefore Madeshi agenda is incoherent to the proposed 5th amendment.
Again it is our hard-earned people´s mandate for establishing institution of competitive electoral democracy - Constituent Assembly, which representatives as people´s elected legislators´ of the first democratic institution must not let any agreement as such bypass their ballot. It is in their legislature vote people´s electoral power is vested for them to lead the nation to the inclusive electoral democracy that can have the strength for defending national integrity and protecting civil liberty and rights of other Nepali indigenous nationalities for forming their own state and local bodies of government under the federal government system of the Federal Democratic Republic Nepal.
Madhesi lawmakers´ demand to include agreements of Madhesi alliance United Democratic Madhesi Front (UDMF) with the interim government in the 5th amendment of the interim constitution for the ratification by Constituent Assembly is legitimate. It is the most sensible move of Madhesi lawmakers in Constituent Assembly as a democratic practice. However, the agreements have to be coherent to the 5th amendment of the constitution. If all the agreements are not coherent to the bill of 5th amendment then their agenda must have a separate bill for Constituent Assembly to vote on. But, in any case, they must be ratified by the Constituent Assembly because just the agreements between the government and UDMF themselves cannot be statutory law.
The question is whether the major element of agreements such as formation of autonomous states needs to be rectified by the Constituent Assembly under the interim constitution for the immediate implementation or it has to be the principle element of restructuring states under the new constitution. If the former is true then we must find out how coherent such agreements are with the current constitutional crisis from the perspective of the primary objective of Constituent Assembly. We must acknowledge that the 5th amendment of interim constitution is the necessity without which a new legitimate government cannot be formed in order to take its primary responsibility in coordination with Constituent Assembly for drafting a new constitution of federal democratic republic Nepal.
The declaration of federal democratic republic Nepal by the first historic session of Constituent Assembly has mandated the restructuring of the state to implement federal government system. But what federal governance structure Nepal will adopt to its best implementation that can keep national integrity intact is the responsibility of Constituent Assembly. In my opinion, CA representatives have not even started brainstorming on how the electoral mechanics of federal government system functions in relation with the central to the states and local governments. The logic of expediency is that as much as states are autonomous and have right to self-governance that much their local governments are autonomous and have right to self-governance. If this provision is set in the constitution then national integrity remains intact. But the question ´how?´ should be thoroughly scrutinized in Constituent Assembly.
The logical process of restructuring state under the federal government system is first to draft a constitution or a blue book of legislation. But the constitutional provisions of the federal state regarding its structure and functionality must be decided with the consensus vote of the Constituent Assembly. It is therefore premature to include agreement such as UMDF´s for autonomous state for interim government to set the guarantee prior to the legislative process of Constituent Assembly. However, such agreements must be processed under the scrutiny of drafting constitution with the simple majority vote of Constituent Assembly (as per the proposed 5th amendment for simple majority provision).
However, the agreement to declare all those individual Nepalis martyrs during Madhes movements cannot be the part of the constitutional crises that the nation is going through. But it should be the responsibility of the interim government to honor martyrs providing proper compensation to their families. If the interim government could not do it then the new government should do it.
As a matter of fact, the constitutional provisions of the 5th amendment as per the recommendation of six-member-SPA-task force can be the basis for the practice of competitive electoral democracy in the legislature level for a new democratic Nepal. What 5th amendment is trying to establish a provision for legislature to vote on issues for resolving political crises and a method for implementing peace process to a logical end. Electing president, vice-president and prime minister with the simple majority vote of the legislature - Constituent Assembly that allows the formation of an executive body of the government or cabinet is to introduce a new chapter in the modern democracy of Nepal. This is what can make the old-fashioned Anglo Indian Parliamentary practice obsolete.
Similarly, the Madhesi demand for one Madhes one province must be brought to the ballot of the legislature as separate bill but not part of the 5th amendment. Madhesi political parties attempt to include their demands in the 5th amendment is to force their agreements without the scrutiny of the people´s representatives in Constituent Assembly. The most democratic approach to address their agreements is to table a separate bill in the legislature for vote.
It will be historical mistake to include Madhesi agreements in the purposed 5th amendment of the constitution against the current political process for establishing the practice of electoral democracy. It is to first lay the cornerstone of democracy for the electoral institutional development of the legislature – Constituent Assembly with the provisions of 5th amendment. Then after a separate session of legislature must be called upon to ballot Madhesi demand for Constituent Assembly endorsements.
Since the Madhesi agenda has become a political crisis it can neither be excused with what have been agreed upon nor it can be outright discarded. It needs the vote of the legislators of the Constituent Assembly. It deserves a new session of the Constituent Assembly. Therefore, both Maoist and UML rejection for one Madhes one province is also immature because political issue such as must be brought to the attention of the people´s representatives in Constituent Assembly for vote. Such step should finalize the crises whether what agreement UNDF had with the interim government or with the almighty for the forceful superimposition of Madhesi homogeneity.
It is politically dangerous to express solidarity with Madhesi agenda especially for one Madhes and one province by any political parties without the proposal of bringing their agenda to the legislature of the Constituent Assembly. Those parties, which intend to do so for the dirty politics of power, will eventually undermine the integrity of nation and violate the civil liberty and rights of other indigenous Nepali both ancient and recent settlements from being able to form their own federal state with autonomous and self-governance provisions.
As Maoist leader Dr. Babu Ram Bhattarai has pointed in retrospect that as per agreement the demand of Madhesi autonomous state ought to be addressed by the new constitution for which legislators of the Constituent Assembly have been elected with the successful historic elections of CA. Therefore, it is legitimate demand of Madhesi legislators that Madhesi agreements must be set to the motion. But the major political party must be able to scrutinize the demand for its coherence with the 5th amendment that is being proposed. In my opinion, it is a different political issue for a new constitutional provision that is ought to be addressed while restructuring the state. Therefore Madeshi agenda is incoherent to the proposed 5th amendment.
Again it is our hard-earned people´s mandate for establishing institution of competitive electoral democracy - Constituent Assembly, which representatives as people´s elected legislators´ of the first democratic institution must not let any agreement as such bypass their ballot. It is in their legislature vote people´s electoral power is vested for them to lead the nation to the inclusive electoral democracy that can have the strength for defending national integrity and protecting civil liberty and rights of other Nepali indigenous nationalities for forming their own state and local bodies of government under the federal government system of the Federal Democratic Republic Nepal.