NEPAL'S CONSTITUTION DRAFTING MOVES AHEAD

C O N F I D E N T I A L SECTION 01 OF 04 KATHMANDU 000128

SIPDIS

E.O. 12958: DECL: 02/09/2020
TAGS: PGOV KDEM NP
SUBJECT: NEPAL'S CONSTITUTION DRAFTING MOVES AHEAD

REF: KATHMANDU 0093

Classified By: Charge d'Affaires, a.i., Donald A. Camp 1.4 (b/d).


1. (C) SUMMARY: Nepal's 601-person Constituent Assembly (CA)
is making steady progress drafting a new constitution. The
CA's eleven thematic committees have submitted reports, and
drafting has begun. While the committees reached agreement
on many key constitutional provisions, there are at least
five issues that touch on parties' core political and
ideological interests and will require difficult compromises:
federalism, form of government, electoral system, land
reform, and judicial independence. The CA is unlikely to
meet the May 28 deadline for completing the new constitution,
and could extend its mandate for another six months. An
extension may be the preferred solution, if the extra time
facilitates consensus, public support, and careful drafting.
If the CA does not extend its mandate or complete the
constitution on time, the country would fall into a
"constitutional void," raising the possibility of a
presidential takeover or military coup. Post considers this
latter scenario unlikely, but will track closely. END
SUMMARY.


2. (C) This report draws on PDAS Moon's January 18 meeting
with Constituent Assembly Speaker Nembang, Charge's meetings
with Unified Communist Party of Nepal-Maoist Chairman Pushpa
Kamal Dahal "Prachanda" (reftel) and Communist Party of
Nepal-United Marxist-Leninist (UML) Chairman Jhalanath Khanal
(septel); and EmbOff's meetings with the key lawyers for the
three major parties: Khim Lal Devkota (Maoist),Agni Kharel
and Sapana Malla (UML),and Radheshyan Adhikari (Nepali
Congress). EmbOff also met with presidential legal advisor
Surya Dungel and Center for Constitutional Development (CCD)
advisors Marcus Brand and Budi Karki.

--------------
Committee Reports Filed, Tight Timeline
--------------

3. (SBU) The Constituent Assembly's eleven "thematic
committees" -- which debated topics from land reform to the
national anthem -- have sent their reports to the full CA,
the last report on "state restructuring" having been
presented January 31. The 63-member Constitutional
Committee, which includes most of the key party leaders and
constitutional lawyers, started drafting constitutional text
on February 5, drawing on (but not bound by) the finalized
committee reports. Under the current CA schedule, the
drafting should be complete by March 5, followed by three
weeks of public discussions, additional CA debate,
amendments, and ultimately promulgation of the new
constitution no later than May 28, 2010.


4. (C) Although CA Speaker Nembang says he is "hopeful" the
constitution will be finished in the stipulated time, those
involved in the drafting report privately that the proposed
timetable is unrealistic. The eleven committee reports
overlap, contradict themselves, and contain hundreds of
"dissenting views." Sapana Malla, one of the key UML
attorneys, told EmbOff that the Constitutional Committee's
"realistic goal" is to finish a draft constitution by May 28,
then request a six-month extension for debate and amendment.
In addition, most civil society activists believe the
three-week public consultation period, which was originally
scheduled for three months, is too short, particularly since
this will be Nepal's first democratically-drafted
constitution.


5. (SBU) At least two-thirds of the CA must approve the final
constitution, which puts the Maoists, with 40 percent of the
CA seats, in a particularly strong negotiating position. The
next two largest parties: the Nepali Congress (with 19
percent of the seats) and UML (18 percent) could join forces
to block final approval. The various Terai-based parties

KATHMANDU 00000128 002 OF 004


hold about 14 percent of the vote, and will wield significant
influence, especially if the three major parties cannot reach
consensus.

--------------
Tough Issues Ahead
--------------

6. (SBU) During the debate over the past year, the eleven
committees significantly narrowed the number of outstanding
issues, with a surprising degree of consensus among the
parties, including the Maoists. However, we assess that
there are at least five major constitutional issues that
affect parties' core political and ideological interests and
will require difficult political compromises.

Federalism/State Restructuring
--------------

7. (SBU) Perhaps the toughest and most politically-sensitive
issue, "state restructuring" or federalism divides Nepalis
along ethnic and caste lines. Nepal's previously
disadvantaged communities -- from Terai's Madhesis to
"janajati" ethnic groups like the Tharus and Limbus -- view
federalism as a way to gain economic and political power and
want states drawn largely along ethnic lines. The Maoists
cleverly claimed this issue as their own in the campaign, and
other major parties have reluctantly played along for
political reasons -- despite the strong reservations of
Nepal's traditional Brahman/Chettri elite, who generally
oppose federalism or want fewer states based purely on
geography.


8. (SBU) In its report, the Committee on State Restructuring
recommended a 14-state system, with boundaries drawn largely
along ethnic and linguistic lines (map emailed to SCA/INSB),
supported by the Maoists and elements of the UML. The Nepali
Congress supports an alternative six-state map. The
Terai-based parties reject both proposals, calling for one
state covering the entire Terai region ("one madhes, one
pradesh"),which is unrealistic but politically potent
(setting the stage for future protests). UML leader
Jhalanath Khanal told Charge he believes the various groups
will ultimately be forced to compromise, ending up with
perhaps eight to ten states. The major parties generally
agree on the scope of the devolution of power.

Form of Government: President vs. Parliament
--------------

9. (SBU) The CA committee on Forms of Government narrowly
approved the Maoist proposal to create a strong presidential
system -- modeled on the U.S. system, the Maoists claim --
with a directly-elected president holding office for five
year terms, limited to two terms. The Nepali Congress and
UML want a parliamentary system with a ceremonial president
as head of state and prime minister as head of government.
The Maoists prefer the presidential system because they
believe their leader, Prachanda, would likely win a
presidential election, but they are less sure they will
secure a majority of the parliamentary seats. The Congress
and UML fear that the Maoist-proposed presidential system
would lead to authoritarianism and want robust checks and
balances.

Electoral System
--------------

10. (SBU) The Nepali Congress and UML electoral system
proposal, approved in committee, would create a mixed
first-past-the-post, proportional representation (PR) system,
similar to the current electoral framework. The committee
recommended a two-house legislature: a 151-member House of
Representatives (76 chosen through direct elections, and 75
by PR),and a 51-member National Assembly (38 chosen by
provinces and 13 chosen by the House to represent
disadvantaged communities, such as Dalits ("untouchables")).
By contrast, the Maoists are pushing for a unicameral

KATHMANDU 00000128 003 OF 004


parliament (with 245 members),chosen through a complex,
multi-member constituency system which would reserve seats
for certain designated groups. This type of system would
play to the Maoist political strength among ethnic and other
disadvantaged groups.

Land Reform
--------------

11. (SBU) The Maoists want radical land reform that would
place strict limits on the size of plots for individual
owners, and deny compensation to current landowners. Reform
of Nepal's "feudal" land system is one of the Maoists' key
demands, and the party will not compromise easily. The
Nepali Congress favors land reform that would "improve
economic growth" without new limits on ownership, while the
UML generally agrees on limits, but with compensation to
current owners.

Judicial Independence
--------------

12. (SBU) The Maoists, supported in committee by the Terai
parties, want to give parliament the authority to approve and
dismiss judges by majority vote, and interpret the
constitution. The Maoist claim -- with some validity -- that
the current judiciary is elitist and unrepresentative. The
Nepali Congress and UML charge that the Maoist proposal
violates basic principles of separation of powers and
judicial independence, a position backed by the Nepal Bar
Association and civil society leaders.

--------------
May 28 Deadline: Four Scenarios
--------------

13. (C) Given the number of outstanding issues, complexity in
drafting, and tight timeline, we believe it is unlikely that
the CA will meet its May 28 deadline. The Interim
Constitution does not address this eventuality, only
suggesting that a six-month extension is allowed if the
drafting is not complete "due to the proclamation of a State
of Emergency" (at this stage, we do not anticipate a state of
emergency). We see four possible scenarios:

-- Time Extension (Most Likely): The CA amends the interim
constitution to extend its own tenure by six months (or
longer) to complete work. Some constitutional experts,
including the President's legal advisor Surya Dungel,
question whether the CA has this authority, but the lawyers
for the major parties, including the Maoists, and UN
constitutional experts believe an amendment extending the
CA's mandate is permissible. Given the challenges of
finishing the constitution on time, the extension may be the
preferred solution, if it allows the parties to develop
consensus on key issues, gain public buy-in, and ensure
careful drafting.

-- Framework Constitution (Possible, but Less Likely): The
CA approves a "framework constitution" by May 28, technically
meeting the deadline, but leaves the details to the follow-on
parliament or some type of commission. UN expert Marcus
Brand has encouraged the CA to consider this option.
Prachanda called this a "shortcut" constitution (reftel).

-- Drafted on Time (Unlikely): Building on the recent
positive momentum, the CA lawyers work hard and complete a
full draft on schedule; the CA approves it by May 28. None
of the key lawyers believe this is likely.

-- Constitutional "Black Hole" (Unlikely, but Need to Watch):
The CA fails to take any action by the end of its mandate
(May 28),creating a constitutional void. No one knows what
would happen in that case, but four possibilities are most
often discussed: (1) the President takes over since his
mandate is arguably different than the CA's (a dubious legal
theory floated by the President's own lawyer),(2) the Army

KATHMANDU 00000128 004 OF 004


takes over to fill the power vacuum, (3) the country reverts
to the 1990 constitution, or (4) the current government
simply continues. Given this uncertainty and possible
negative impact on the peace process, every effort should be
made to avoid the "black hole" scenario. Post will continue
to engage the key players, including the President, Nepal
Army, and Indian Embassy, to track their thinking about
post-May 28 options.
CAMP