The Telegraph
Since 1st March, 1999
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‘Third party’ sets talks tone
- Hong Kong prof in discussions with Centre, Naga team

Amsterdam, May 19: Much as the government might underplay it, third-party facilitation in the Naga peace process moved another step forward today.

Renowned constitutional law expert Yash Ghai, who holds the Sir Y.K. Pao Chair in public law at the University of Hong Kong, began discussions with Union minister of state Oscar Fernandez in the Dutch capital after a similar meeting with Thuingaleng Muivah, general secretary of the National Socialist Council of Nagalim (Isak-Muivah), and his negotiating team this morning.

Ghai is the world’s foremost expert on constitutional law and that is why his facilitation assumes importance. He is a Kenyan of Indian origin. He is also a specialist in ethnic conflicts.

Ghai is believed to be discussing the limits of flexibility of the Indian Constitution and whether sub-national constitutions could be accommodated within it. The question of multiplicity of constitutions has become a thorny issue as the NSCN (I-M) has proposed negotiating a federal relationship with India.

It has suggested that the relationship between India and the Nagas should be defined by a mutually-agreed settlement incorporated in the Indian Constitution as well as in what it calls a “Naga Constitution”. Only after that, it argues, can there be mutual recognition of each other’s constitutions.

Indian negotiators have argued that the country’s Constitution is flexible enough to take care of regional diversities and regional aspirations.

It allows for asymmetrical federalism ' i.e. different states and regions can relate to the Centre differently. Thus, for example, it recognises the Constitution of the state of Jammu and Kashmir but of no other state and grants special status to some tribal areas under the Sixth Schedule.

Ghai’s expertise was sought by another facilitator in the Naga peace talks, a long-time friend of Muivah and legal adviser to the Dalai Lama, Michael C. van Walt.

Van Walt, who heads a Dutch NGO Kreddah, has been helping the Nagas negotiate with Delhi informally for the last eight years. In the face of a deadlock in the Bangkok talks in January this year, Muivah had openly suggested formal third-party facilitation and exchange of “non-papers” ' proposals discussed informally before bringing the agreed issues to the table formally. Three “non-papers” were commissioned by van Walt and submitted to New Delhi: States and Centre ' The Possibilities and Constraints of the Indian Constitution; The Status and Role of Sub-national Constitutions; and The Kashmir Model.

Yash Ghai co-authored them with another faculty member of the law department of the University of Hong Kong, Jill Cottrell.

In the “non-paper” on Sub-national Constitutions, Ghai analyses federal constitutions from around the world. He argues that there are two kinds of federations: those which allow for separate federal and state-level constitutions (like the US, Germany, Switzerland, Australia, Malaysia and Ethiopia); and those where the powers of the Centre and the states are incorporated in a single document (India, Pakistan and Nigeria).

The Nagas are reluctant to accept that the Indian Union is a federation in the sense that they view federalism. It remains to be seen what Ghai’s intervention in this matter would be. While the Indian negotiators were mum on the “non-papers”, Muivah also sought to distance himself from them. “The non-papers were not commissioned by us. Michael (van Walt) and Yash Ghai may like to discuss these issues with us ' that is about all.”

However, one thing was clear ' that when formal talks begin tomorrow, the issue of a federal relationship would be on the table. “The agenda is clear. We will talk about the formation of a federation and the integration of Naga areas,” Muivah said.

Muivah and his team had an informal meeting with the Indian negotiators, Fernandez and former Union home secretary K. Padmanabhaiah, late this evening. Formal talks between the two sides will be on Saturday and Sunday.

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