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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