Only states based on both identity and capacity can last

OCT 20 - Now that the third extended deadline for parties to forge consensus on disputed issues in the new constitution has passed, parties have again agreed to reach consensus by the end of October. But they remain sharply divided over disputed issues, primarily on federalism and form of government. The ruling parties—the Nepali Congress (NC) and the CPN-UML—are also at odds with the opposition—the UCPN (Maoist) and the Madhesi and Janajati parties—over whether to go for a majority vote on disputed issues if consensus cannot be reached. Bhadra Sharma caught up with UML chief whip, Agni Kharel, who is also the party’s representative in the cross-party panel formed to seek consensus, to understand the UML’s position shift on form of government, its stance on going to a vote on disputed issues, and possible meeting points.

The UML appears uncompromising on disputed issues of the constitution. Why is this?
The party is not rigid. It is flexible and willing to comply with what is best for the constitution. I don’t know why we appear uncompromising to outsiders, but we have already agreed on seven provinces. We have also explained the reasons behind our choice of number of provinces. We have discussed this with more than half-a-dozen political parties as well. The UML has acknowledged identity and its five criteria as a basis for federation, but has dismissed the theory that identity is synonomous with caste and ethnicity. Division into provinces according to capability has four criteria and we have been saying that only those provinces based on both identity and capacity can last.
Some sections of the UML have come out strongly in favour of a vote in case consensus cannot be reached. How does this coincide with the UML’s flexibility on disputed issues?
The UML party chairperson has repeatedly said that consensus is the way forward. We don’t have a two-third majority in the House to push for a vote. But then again, seeking agreement does not mean that everyone will agree on everything. The Congress and the Maoists differ on almost every point. For instance, the NC is not in favour of 10 provinces or for a directly-elected presidency. Neither has the Congress ever wanted to go beyond the directly-elected parliamentary system. Still, a level of unanimity on major issues must be reached. We have amended our policies to fit the line of consensus. What is surprising is that a party that has amended its policies to become more agreeable has been deemed inflexible.
The UML recently said that it is willing to give up its demand for a directly-elected premier. What accounts for this shift in position?
The party has long been demanding a directly-elected prime minister; it is there in our manifesto as well. The primary reason behind this form of government is our desire for stability. The UCPN (Maoist) was with us on this. But when it comes to drafting the constitution, it is not enough to have just the UML and UCPN (Maoist) on one side. The Congress and UML have to be together because of our commitment to a democratic constitution.
What is your stance on form of government?
Governance should be about stability and democracy. Some might call it a reformed parliamentary process or multi-party democratic process but we are not satisfied with the situation as it is. But neither are we trying to fall behind the Congress. The NC is in favour of the traditional parliamentary form of government. We have told them that we do not agree with this. Our party and the nation are both tired of seeing the ‘vote of no-confidence’ motion used to bring down governments frequently in the past. We need strong clauses that say that no one can propose a no-confidence vote for at least two years after the formation of the government. If a party proposes such a vote in Parliament, that party should also nominate a prime minister before voting starts. And, if the proposal fails and the incumbent government remains in force, no other party can propose a similar poll for at least another year.
But we are also against a directly-elected president as chief executive because we have battled autocracy for a long time and we don’t want a similar situation to arise in the future. If we cannot agree on every issue right now, we can at least release a democratic constitution without compromising on fundamental principles.
Parties haven’t been able to forge consensus for a long time now. But the self-imposed deadline for the new constitution—January 22—is close. How will the parties find common ground?
Until a point, we will keep pushing for consensus. But then, there are parties that talk about consensus but do nothing to that end and instead, threaten to burn the constitution if it is not consensus-driven. We need to opt for consensus for as long as we can, but if that is not possible, we need to take disputed issues to the CA. That is the mandate of the CA and it is ready for that. In the last CA, the chairperson had directed that unresolved questions be put to a vote. This CA has again endorsed that very proposal. However, this does not mean that the voting will finalise the constitution. Whichever proposal wins a majority, will be incorporated into the draft constitution, which will then be circulated to the public and to the CA. The CA members will then amend the draft further. During this whole process, negotiations will continue. We don’t need a two-thirds majority right now. We need that only when every article and clause of the constitution needs to be passed. This time, a simple majority will incorporate an issue into the draft. People need to realise that going for a vote now does not mean that the doors for negotiations will remain shut forever.
For instance, when it comes to federation, the Maoists are for 10 provinces, and, let’s say, the NC is for six, and we are for seven. Whichever stance gets 51 percent of the votes, that will be incorporated into the draft. But the drafting committee needs to be ready to negotiate to address our disagreements. Until the finalisation of the constitution, negotiations need to and will go on.
You have been attending a lot of inter-party talks. What do you think are the bases for consensus?
The theoretical basis is the idea of a federal democratic republic. A democratic constitution means separation of powers. The principle of check and balance should be kept in mind. While federating the country, provinces should be formed based on the four criteria of capability and five of identity or a combination of both. When it comes to form of government, stability is key. As for the electoral process, let’s talk about inclusion.
When it comes to disputed issues, what are the UML bottom lines?
We don’t want to see more than seven provinces. We will not agree to single-identity-based federalism. We want an inclusionary electoral system. The Lower House of Parliament has to be directly elected, but questions of inclusion should be addressed. For instance, 40 percent of directly-elected seats can be made proportionally representative. Seats can be reserved for Dalits, women, and other marginalised communities. The Upper House needs to have representatives from all provinces. If the Upper House has 70 members, each of the, let’s say, seven provinces should send 10 representatives, three or four of whom should be women, one or two Dalits and so on.   
How confident are you that a new constitution will be written by January 22? What will happen if the deadline is not met?
We are confident that the constitution will be written on time because most of the disputed issues are already part of the political dialogue. While searching for consensus, political parties do not need to draft the constitution. They just need to come out with bullet points for agreements. The drafting committee will do the rest, for which a month is enough. But it is irresponsible to say that the sky won’t fall if a constitution is not drafted on time. The CA might not legally expire, but it will start losing political legitimacy.