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By Fakir Mohan Pradhan
Research Associate, Institute for Conflict Management

Bringing an end to the prolonged political deadlock over the formation of a consensus government before holding fresh election for the Constitutional Assembly (CA), the four major Political formations in Nepal – the Unified Communist Party of Nepal-Maoist (UCPN-M), Nepali Congress (NC), Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) and the United Democratic Madhesi Front (UDMF) – finally signed an 11-point Agreement on March 13, 2013, to form an Election Government under the leadership of the incumbent Chief Justice (CJ) Khil Raj Regmi.

The next day (March 14), Justice Regmi took oath as the ‘Chairperson of the Interim Election Council of Ministers’ who ‘shall carry out all the functions and tasks of the Prime Minister (PM) as mentioned in the Constitution’. Other members of the Council (a maximum of 11, including the Chairperson), who shall be appointed from former distinguished class civil service officers of the Government of Nepal, would discharge their function as the council of ministers. Earlier, President Ram Baran Yadav had cleared a 25-point ordinance to remove (constitutional) difficulties for the Election Government and the election. 

According to the Agreement, the primary task of the Election Government or the Interim Election Council will be to hold elections to the Constituent Assembly (CA) within the stipulated time, i.e., by June 21, 2013. If the CA-Parliament elections cannot take place by June 21, 2013, due to technical causes or an intractable situation, the Council of Ministers shall fix the date for holding the election by December 15, 2013, based on a consensus of the 'high-level political mechanism' (HLPM).  

The Chief Justice shall return to his previous post following the nomination of the next PM and the tenure of the Council would come to an end. In the mean time, all the tasks of the CJ will be carried out by the Acting CJ.

The Election Government would not carry out any task of long-term nature. Further, a ‘high-level political mechanism’ (HLPM), with the representation of major parties, would be formed to assist the Government in its activities, in accordance with the spirit of the Joint People’s Movement, political consensus and cooperation, and to resolve possible problems in the political sector. The jurisdiction of the ‘mechanism’ – articulated through a Committee – includes providing necessary consent, feedback and consultation to the Election Government. Further, the Committee would work to create an atmosphere conducive to holding the election within the scheduled date and would recommend to the Council of Ministers the next date for fresh elections if the election cannot be held within the scheduled date due to an ‘intractable situation’.

The Agreement carefully navigates its way through contentious issues regarding the highest rank to be given to former Maoist combatants who joined Nepal Army, voters’ list, citizenship (certificates) and the truth and reconciliation commission, without raking up further controversies.

The Agreement between the ‘big four’ has, however, not gone down well with the fringe parties, including the hardline Mohan Baidya-led Communist Party of Nepal-Maoist (CPN-Maoist Baidya), which split from the UCPN-M on June 19, 2012 . At least 22 fringe parties have taken to the streets to protest against the 11-point Agreement. Indeed, even a considerable section of members of CPN-UML and NC are said to be against the Agreement. The Nepal Bar Association (NBA) has vehemently opposed the arrangement, claiming it compromises the basic democratic principle of separation of powers between the Executive and the Judiciary. Petitions challenging the arrangement of the CJ leading the Election Government have already been submitted before the Supreme Court.

A seemingly workable arrangement to break the protracted deadlock has already run into numerous difficulties. When the ‘big four’ first agreed to have a CJ-led government, the CJ expressed his ‘reservations’. After intense parleys for nearly a month, and a reported assurance that the CJ would not be removed from the post even if the Election Council fails to conduct election by December 15, the CJ agreed to the arrangement. Interestingly, the Agreement is silent on what would happen if election is not conducted by December 15. Further, in the time period between the proposal to make the CJ the head of Election Government and the CJ’s acceptance of the offer – the phase during which he was negotiating terms with the political leaders – he is said to have promised, on grounds of propriety, not to interfere in the constitution of benches that would decide the petitions challenging the arrangement. He has, however, been instrumental in constitution of at least some of the said benches. More controversially, he accepted the offer to lead the Election Government when one of the petitions challenging this move remained sub judice.

Further, the interim Election Council appears to be an arrangement intended to avoid accountability by the political class. Though the chairman and the ministers would purportedly function as the PM and the Council of Ministers, the HLPM retains all powers through the mandate to ‘assist the government’. If this was not sufficiently explicit, the Agreement further provides that it will be in the jurisdiction of the HLPM to provide necessary ‘consent, feedback and consultation’ to the Election Government. The filling up of constitutional posts and appointments of the ambassadors (except from the Foreign Affairs service) can also be done only with the ‘agreement’ of the HLPM.

It is already clear that the schedule to hold the election before June 21 is wildly optimistic, despite the hope expressed by the Election Commission (EC) on March 15 that meeting the deadline could be possible if preparations are made without delay. Earlier, speaking at a programme titled 'Constitutional Crisis and Necessity of Election' in the Capital on February 3, 2013, former Election Commissioner Bhojraj Pokharel had declared, "Let's not talk about holding election in May. Election is possible only in November now." Strangely, the 25-point ordinance removing constitutional difficulties does not include several provisions recommended by the EC, including the proposal that the EC be granted the power to mobilize security personnel for elections and to punish poll officials for breach of discipline. In fact, the Baburam Bhattarai-led Cabinet had failed to forward these proposals to the President.

Moreover, none of the political parties, with the possible exception of UCPN-M, are prepared to go to the polls if elections are held around or before June 21. The Maoists are sitting pretty as the UCPN-M is now the richest political party, thanks to the stipend given to People’s Liberation Army (PLA) combatants staying in cantonments and the voluntary retirement and rehabilitation packages option offered to them, during the Army Integration process. Moreover, the presence of the NC and CPN-UML in the hinterland cannot match the Maoists, even as the Maoists’ capacity for street mobilization (and violence) remains unequalled.

The reality is that the Maoists have been loading the dice for a long time now. They had demanded the integration of 19,602 PLA combatants, but agreed to just 6,500, and, eventually, only 1,462 were found eligible to join the Nepal Army. Despite agreeing to an NC-led Election Government in May 2012, Bhattarai remained in the Prime Minister’s chair, knowing well that the music was going to stop. Indeed, the Maoists have gone back on most of the promises they made in various agreements with the other parties over time.

Meanwhile, the ‘big four’ on March 16 have constituted the proposed HLPM. According to the understanding, each party would lead the ‘mechanism’ for a month, on rotation basis, starting with UCPN-M Chairman, Pushpa Kamal Dahal, followed by NC President Sushil Koirala, CPN-UML Chairman Jhalanath Khanal and UDMF Coordinator Bijaya Kumar Gachchhadar, in that order.  

The11-point agreement appears to have broken through a four month deadlock, and to offer hopes of a new election and Constituent Assembly. However, given the record of the political parties, these outcomes remain uncertain. With the overwhelming proportion of powers concentrated in the HLPM, and the fractious relations between its constituents, there is little reason to believe that the term of the Election Government will be smooth and will culminate in ordered elections, possibly in June and certainly before December. Indeed, the principal political parties arrived at the 11-point agreement, not on the basis of a consensual understanding on major issues, but rather due to their individual and divergent interests. The NC and CPN-UML sought an end to the Bhattarai Government, and could secure no other outcome, having failed to establish the NC-led Election Government earlier agreed on. The Maoists, on the other hand, have already consolidated their strengths and exercise enormous power within any administrative arrangement, including the dispensation under the current Agreement. The coming months are, consequently, certain to see ugly confrontations in the HLPM, as each party seeks to maneuver to its own advantage. Indeed, despite appearances, the circumstances that led to the deadlock of the past months persist, and may even be amplified by the unfinished compromises of the HLPM – Election Government setup.

[Source: SATP]

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