Arato: Well Meaning But Away From Ground Realities
Professor Arato is a leading expert in his field, that of interim constitutions. I have heard it said that he is of global renown, a widely respected academic. I have had the honor to meet him a few times in person. He is a man of modest demeanor, approachable. He surely has a keen interest in Nepal. Above is the photo of him I took at the event.
The last time I met him was at The New School Event where I spoke.
He asked the first question during the Question Answer Session, my favorite part of the whole program, and he asked it to me. This article reads like an elaboration of that same question. I hope to offer an elaborate answer here myself.
The New School Event: Madhesi Question: Photos 2
The New School Event: Madhesi Question: Photos
The New School Event: My Speech To Be Delivered
It worries me that someone of his stature is missing the picture. He seems to offer the same explanations as the ruling elites in Nepal today. The people are asked to be patient, to wait. Social justice takes time. You can not have it all right away. Progress will be incremental, might take generations.
I am all for a constituent assembly. Heck, I have been arguing for it right after the king's coup.
As to where to go from where we stand right now, I think there are two basic steps that have to be taken. The first has to be the Home Minister's resignation. Professor Arato does not even touch upon that issue. That shows how far removed from Nepal's ground realities he is. His writing has been gleaned more from reading journal articles in his field than the daily news on Nepal.
Without the Home Minister's resignation, the ball is not moving at all.
The next thing to do would be to adopt the Madhesi, Janajati, UML demand for proportional elections to the constituent assembly. That is the best bet to make sure the constituent assembly's composition ends up looking like that of Nepal.
Two Things To Do To Prevent April Kranti III
The Madhesi and Janajati Movements have not been waged against the constituent assembly, quite the contrary.
Constituent Assembly: 300 Seats Of Roughly Equal Population
What has been launched in Nepal today has to be seen as the third part of the April Revolution. Let's face it, the April Revolution surprised the world. Noone had a clue as to how exactly the king would relent. People in circles like that of Arato were hoping someone would talk sense into the king, perhaps some visiting dignitary, some foreign ambassador, perhaps some UN official. He would somehow see the light.
The problem with that view all along was that it did not see clearly as the magnitude of force that would be required to get the king off his pedestal. That force had to be street action.
The eight parties did not incorporate federalism in the interim constitution. That rang alarm bells. Not even the Maoists are offering federalism. They talk of autonomous regions. They have Tibet in mind, not Bihar. Parties like the UML are thinking in terms of a federalism that is but a codeword for decentralization, with maps that look not that different from that of King Mahendra. In other words, clever ways will be sought to marginalize the Madhesi Janajati sentiments for ethnic federalism, just like Wales and Scotland and Tamilnadu and Maharashtra and Quebec.
The Madhesi and Janajati are worried that once the elections already take place, and the constituent assembly ends up looking no different from the current interim parliament - mostly Bahun Chhetri men - then all doors will be shut. There will be even less room to complain. To revolt against a "popularly elected" constituent assembly would make even less sense.
The struggle is not to disrupt the elections to the constituent assembly. The struggle is to make sure the ground rules are fair. The constituent assembly has to end up looking like Nepal in its ethnic and gender composition.
Andrew made a valid point at the program. He was alarmed that in trying to make the constituent assembly "look" like Nepal, we might veer from the basic of democracy, which is one person, one vote. His valid fear that I share is we might end up with the kind of social engineering that the Soviet state experimented with not long after its formation. The Maoist parliamentary team today has a better Janajati representation than that of the other parties, but those Janajatis have been herded around like cattle by Prachanda. So "looking like Nepal" will not be enough. The members of the constituent assembly will have to be elected through the one person one vote mechanism. They have to answer to the people first, to their party supremos second.
My original proposal was to have all members to the constituent assembly be elected directly by the people. And to have reserved constituencies. So if you have a Dalit constituency, you still hold elections, but all candidates in that particular constituency have to be Dalit.
I think Andrew Arato might go for something like that. But then that's the point. The eight parties will not. And Andrew is in no position to influence them otherwise. There is social injustice in Nepal. People in power sustain that. Andrew can not remedy the social injustice. So he should be glad the oppressed are seeking nonviolent remedies to redress.
If the ground rules were fair, the Madhesi and the Janajati would head to the polls and seek votes for themselves. But the ground rules are not fair. The few Bahuns at the top are slated to give tickets. They will get to decide who will even contest the elections.
We who watch the developments from afar have to hope that protests stay nonviolent. More importantly, we have to take sides. Andrew's position reminds me of the MLK line about how the quiet of the good people hurts more than the active malice of the bad people.
The most tenable position now would be for the likes of Andrew to rally support for the two common sense positions in the current scenario.
- The Home Minister's resignation.
- Proportional elections to the constituent assembly.
The Home Minister not resigning should tell the world how disrespectful the Pahadi Bahun men in power in Nepal are towards the Madhesis of Nepal. That right there is the most obvious litmus test.
Andrew's call should not be for elections, but free, fair and representative elections. Andrew's call should not be that the Madhesis and the Janajatis should shut up and sit down. It should be that the Madhesi and Janajati grievances should be identified and addressed.
Let Professor Arato pass the same litmus test. Will he or will he not call for the Home Minister's resignation?
Andrew is suggesting federalism has to be secured through the constituent assembly. That is not the issue the Madhesi and the Janajati are struggling with. The issue we are struggling with is that the Bahun Chhetri men in power have been equating federalism with disintegration.
I suggest Andrew offer more empathy to the Madhesi Janajati movement. I suggest he get more specific. Otherwise he comes across as parroting those in power in Nepal right now.
And I would welcome further conversation on this topic. I can accuse Andrew of not being in tune with the ground realities of the Madhesi Janajati movement, but I can not accuse him of holding the prejudices of the Bahun Chhetri men. So further dialogue between Andrew and me might help the conversation in Nepal itself.
"The task for now was only making sure that the Constituent assembly would be constituted in a free, fair and truly inclusive way, so that its decisions on all the relevant questions will be democratic, fair and inclusive in turn."
This is what I agree with. Will Andrew agree that the interim constitution has failed in that task?
Andrew claims ignorance on the citizenship issue raised by the Madhesis. How could he? That issue is fundamental to the Madhesi Movement. That is further proof he is not in tune with the basic thrust of the Madhesi Movement.
Andrew paints the picture of a dictator Prime Minister, one that can die away, but otherwise can not be removed. To him it reads like an oversight. To the Madhesi and the Janajati that reads like entrenched Bahun power.
"I would have chosen a single country PR with rules for ethnic and gender fairness"
Andrew and I agree after all. That is precisely what the Madhesi and the Janajati are asking for right now. That is why they have shut the country down.
"The creation of all woman candidate districts (1/3 of them) would be possible but absurd."
Why would that be absurd?
"It is equally important now that the Interim Constitution be accepted, even with its glaring faults. Renegotiating it would put off elections indefinitely.."
This is where we fundamentally disagree.
Interim Crisis or Interim Learning?The interim constitution places Nepal in the forefront of the best recent experiments in non-revolutionary democratic transformations, starting in Spain and culminating in South Africa. These experiments all involved two stage models of change, negotiated for most of them through round table or multi-party agreements, and in the most advanced form relying on interim constitutions.
By Prof. Andrew Arato
The new Interim Constitution of Nepal is an important achievement of a democratic process. It is however a document with serious problems of drafting and formulation, which could lead to political difficulties, even constitutional crisis. Fortunately it is relatively open to constitutional amendments that are constitutional learning. With a few necessary amendments, this constitution should be strongly supported by democrats because there is no alternative regulation for the transition period.
The interim constitution places Nepal in the forefront of the best recent experiments in non-revolutionary democratic transformations, starting in Spain and culminating in South Africa. These experiments all involved two stage models of change, negotiated for most of them through round table or multi-party agreements, and in the most advanced form relying on interim constitutions. Nepal unlike many of the cases had a legal break initiating the changes, but like the most developed form had a series of multi-party agreements and now completed an interim constitution. And that, under difficult historical circumstances is a great achievement, especially if it works.
With this said the Interim Constitution recently enacted has serious faults, some of which became clear during the recent popular movement in the Terai region that is already forcing probable amendments. Let me note the main problems. First, the Interim Constitution makes a great mistake in its Preamble to speak in the name of “We, the people of Nepal”. The American original could do so because it was submitted to ratification by popularly elected bodies. Other constitutions that follow this example are drafted by popular bodies, or are submitted to popular ratification, or both. Neither is the case for the Interim Constitution of Nepal; it was drafted by an 8 party bargain, and ratified by a chamber elected in 1999, and illegally (though perhaps legitimately) recalled. These two instances do not add up to the authority of the “people” in any sense. Moreover, an interim constitution does not need such an authority, because its function is to enable the people, or those legitimately speaking in its name to draft a new constitution. While greater legitimacy in negotiating the Interim Constitution through a more public, consultative and open process would have been important, taking on the mantle of the people is especially paradoxical in the absence of such proceedings. It has finally a very dangerous consequence: it is assumed that the makers of the interim constitution had the authority in principle to decide questions that only a democratically elected body could decide, in particular to transform the state from a centralistic to a federal one. Now under pressure the government seems to be getting ready to make an amendment on this question, pre-empting the work of the constituent assembly. But to some extent it invited the raising of this problem, and who knows what others, with the possible absurd end result that the constituent assembly would have nothing left to decide.
In fact, a careful examination of the document shows (rightly in my view) a conservative rather than innovative spirit at work, belying the supposed popular mandate. Most of the interim constitution tracks the structure and sometimes the very paragraphs of the 1990 Constitution of the Kingdom of Nepal, eliminating most references to royal powers and prerogatives of course, or worse substituting Prime Minister for King in some crucial instances. Such tracking and repetition is unfortunate when it invites repetition of the authoritarian practices of the old regime. In particular the presence of the Constitution of 1990 is obviously visible in many of the provisions concerning civil rights for example that are full of the old loopholes and in the provisions concerning judicial structure. The latter justifiably raised questions, in Nepal and outside, concerning judicial independence. Granted, the Interim Constitution adds whole sections on The Right to Equality and Rights against Untouchability and Racial Discrimination (articles 13 and 14). But these new rights are in no better shape than the old if the judges needed to enforce them are picked exactly in the old way, with Prime Minister substituting for the King in the exact formula of the 1990 Constitution.
Moreover, astonishingly enough, this Prime Minister will be for the next two and half years under less parliamentary control than the old one was supposed to be, though of course that control was shared with the King in a highly undesirable fashion. In the Interim Constitution, the PM is supposedly picked by consensus among the 8 parties, and failing that by 2/3 of the new parliament (Legislature-Parliament in the new terminology). There is however no possibility of removal through loss of or votes of no confidence as there was in Article 36(5b) of the Constitution of 1990. Astonishingly, with the election of the Constitutional Assembly (rightly defined as also a new Legislature-Parliament) there is no requirement of new government formation. So appointed under one majority, a PM may choose to govern when he is in a weak minority position. Of course he could resign, but he does not need to, and the Constitutional Assembly has no powers to force him. Even more astonishingly Article 160 of the Interim Constitution states that the Council of Ministers in office at the time of the promulgation of that constitution stays in office making Article 38 (1 and 2) basically irrelevant, except in cases of death or resignation of a Prime Minister. The road is open for the current government to stay in office for 2 and ½ years, if it wishes, and if it is favored by natural factors. If the idea was to produce a power sharing formula among the major parties, this was not the way to do it, especially because it is hard to know what will be the major parties after the elections for the Constituent Assembly.
Preparation for those elections and the rules for the Constituent Assembly were in fact the major tasks to be solved by the Interim Constitution, and I strongly disagree with those who argue that it was their makers’ task to come to agreements about all kinds of substantive issues confronting the country, like federalism and material social justice. Those issues are the legitimate province of the democratically elected Constituent Assembly, and even subsequent legislatures to the extent that social and economic policies are involved. The task for now was only making sure that the Constituent assembly would be constituted in a free, fair and truly inclusive way, so that its decisions on all the relevant questions will be democratic, fair and inclusive in turn. It was also important to restrain the Constituent Assembly by rules so that minorities could not be simply outvoted by majorities, producing an imposed, majoritarian constitution, and the Interim Constitution accomplishes this last task reasonably well. The way the Constitutional Assembly is supposed to deal with the issue of kingship through simple majority is not too reassuring, but there is the option still of calling a referendum on this question according to the Interim Constitution (Articles 157, 159(3)). The really difficult issue remains that of the Constituent Assembly’s membership. While I do not sympathise with those raising the issue of federalism now, others questioning the Interim Constitution’s decisions on the electoral rule and citizenship have a much stronger point because these two domains have to do with the very composition of the Constituent Assembly and the possibility that it will not be genuinely representative of both the unity and the diversity of the people of Nepal. As to citizenship, I am no expert, but the kind of additions I detect vis-à-vis the Constitution of 1990, though important, do not seem to go very far. So (I cannot judge) if the grievances of the Madhesi community are serious, more adjustments and changes in this area would be called for. Perhaps independent international experts need to give their opinion on this question. If the lists of citizens can be expanded in the Terai, I must admit I think this would be a better solution than adding more first past the post districts in that region. The mixed system in the Interim constitution is not a bad one (though I would have chosen a single country PR with rules for ethnic and gender fairness) reflecting the fact that some minorities are geographically concentrated and would benefit from more districts in their area, while others like the Dalits (and women who are not a minority) are dispersed and need PR with legal restrictions to get seats. The present regulation is however a muddle (Article 63 (3 and 4) as far as I can see, though I admit that my judgment can be based only on the provision regarding women where it is required that their 1/3 parliamentary representation be assured. There is simply no way to do this with almost half the members running in First-Past-the –Post single district races, because even if parties were required to nominate 1/3 women, all these could lose. The creation of all woman candidate districts (1/3 of them) would be possible but absurd. What I am arguing is that only in the proportional representation part of the competition could the law mandate fair representation of women and other groups, and adding more first First-Past-the –Post races to help one underprivileged group winds up hurting the others. If both types of seats are added as currently proposed, the size of parliament grows and no group is helped. Thus, it would be better to handle the citizenship issue head on, rather than further tinkering with the electoral rule.
In my view then two issues still require adjustment: judicial independence, and (possibly) the question of citizenship. The Interim Constitution allows its own amendment by 2/3 of (in English it is unclear) all or attending members. That rule should be used, though sparingly so that the Constitution is not converted into a simple statute. It is equally important now that the Interim Constitution be accepted, even with its glaring faults. Renegotiating it would put off elections indefinitely, and who knows what conflicts a new Interim constitution would unleash. The current document seems to provide internationally accepted criteria for moving toward free elections, and the most important thing is that it be enforced and upheld during the two and ½ years of its likely existence. Since the government created by it is a power sharing one composed of many forces one would imagine that their internal relations would play some role in constitutional enforcement. Political forces that feel excluded are right to charge an elite agreement to some extent over their heads, and the absence of really open, public and consultative negotiating process, but their best hope in a more democratic outcome is a speedy movement toward a freely elected constituent assembly.
(The author 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 and can be reached at Aarato1944@aol.com )
In The News
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Bandhs hit the nation, Home Ministry appeals for restraint
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Gularia tense after Maoist attack victim dies
Civil society members urge govt to tidy up road to dialogue Civil society members on Monday demanded the government make talks with all the agitating parties including the Janjatis and Madhesis obstacle free and create an environment conducive for dialogue as soon as possible. .... the civil society members also said that if the problems of the Madhesi people put forward by the Madhesi People's Rights Forum can be resolved through the home minister's resignation, the home minister must be ready to step down. ..... The society members also urged the government to form a high level committee to investigate the loss incurred during the Terai movement. ...... Padma Ratna Tuladhar, a member of civil society, said, "Following the loss of so many lives, it is but obvious that anybody will demand the resignation of the home minister. This is not only the demand put forward by the MPRF, it is everyone's demand right now, including us human rights activists and civil society members."
Terai in grip of strikes once again
Robbers on the pretext of MPRF, JTMM members wreak havoc in Terai
Nepal Army okay with number of Maoists arms registered at UN
Nepal Police going hi-tech
Rampant deforestation around Maoist camp
Lack of coordination worsens HIV infection
Mainstream the marginalized: NFIWN
Interim govt to form probe panel to look into cases of the disappeared
Morang's Pathari Bazar grows tense as local dies
फोरम वार्तामा आएन
चुरे-भावर बन्द फिर्ता
UN envoy to Nepal calls into question June polls unless political ... UN News Centre
Nepal to seize Gyanendra’s property Calcutta Telegraph, India Koirala also urged the government to immediately start talks with the agitating Madhesi groups and the Nepal Federation of Indigenous Nationalities which have begun a blockade in the Terai region. .... Traffic on highways in Nepal’s southern plains ground to a halt today ..... Thousands of bus passengers were stranded after Madhesi activists urged all drivers to stay off the roads.
Strikes Resume In Southern And Southeastern Nepal All Headline News markets and educational institutions in the southern and southeastern districts remained shut down .... The protesters have toppled trees and blocked the highways.
NEPAL:Strike call halts traffic
King of Nepal to be punished by the state
Nepal's Terai plains brace for fresh turmoil Indian Muslims, CA
Nepal's Terai plains affected by fresh protests
