Nepal’s difficult constitutional transition

The resolution of violent conflicts, like the one Nepal has endured for over a decade, cannot unfortunately be a linear, logical and smooth process: its impasses are not of a legal nature, but political.

On 3 February 2011 Nepal’s Constituent Assembly (CA) finally succeeded in electing a new Prime Minister. Mr. Jhalanath Khanal, the Chairman of UML, was voted in with Maoist support in the seventeenth round of elections within the seven months of the political stalemate that had affected the Himalayan country since the resignation of his predecessor, Mr. Madhav Kumar Nepal, on 30 June 2010. The intricate relationship between the peace process and the drafting of the new constitution by the CA within the 28 May 2011 deadline raised the question as to whether the election could unlock Nepal’s political and constitutional stalemate. Three months down the line as Nepal’s CA runs the concrete risk of missing its deadline for the second time, this question becomes even more pressing.

Nepal’s current Prime Minister was elected with 368 votes by the 601-member Constituent Assembly; however, a two thirds majority vote in the Assembly will be needed to promulgate the new Constitution, hence at least 401 votes. It will be difficult to achieve this qualified majority with the Assembly’s second biggest party, the Nepali Congress, in opposition. Of the twenty-five political parties represented in the CA, the biggest three control about 75% of the seats: the Maoists 38%, Congress 19% and UML 18%. The fourth biggest party, the Madhesi People’s Rights Forum, holds 9% of the seats. Besides the big four, only five parties control respectively more than 1% of the seats, leaving the remaining sixteen parties at below 1%. The uneven distribution of seats and the fragmentation of Nepal’s political forces in the Constituent Assembly leave plenty of room for shrewd political manoeuvring.

As of mid-May 2011, Congress firmly remains in the opposition camp dictating a number of conditions to support the Government’s vote to extend the term of the CA, while the Forum backs up the Congress’ stance – leaving the Government held at ransom by the opposition due to its inability to reach the two thirds majority to pass this amendment of the Interim Constitution. The process of constitution-drafting seems to be slowly progressing, but the new constitution will not be finalised without the necessary political consensus amongst the key players. Nepali politicians can move fast if they wish to, but a timeframe of about a week to settle their major differences presents even them with a hard challenge. It seems unlikely at this point that the CA will succeed in promulgating a complete, full-fledged constitution detailing Nepal’s federal structure, frame of government and electoral system. However, it is not yet entirely impossible that a series of last-minute agreements will form some sort of consensus around a framework constitution and a vote to further extend the CA’s term – as has often happened in Nepali history.

Politically, post-Cold War Nepal has seen it all: the return to multiparty democracy in 1990 after thirty years of monarchical Panchayat autocracy. The massacre of the Royal Family, which made for international headlines in June 2001. The incessant squabbling of the parliamentary political parties, which produced a startling record of twelve governments in eleven years. A Shining Path-style armed Maoist insurgency since 1996. Two bouts of royal autocracy in 2002-3 and 2005-6 under King Gyanendra who tried to justify his takeovers with the rhetoric of Nepal being the last Hindu kingdom. The brutal crackdown on media freedom, which rocketed Nepal to the top of Reporters without Borders’ watch-list. The anti-monarchical alliance between the ousted political parties and the Maoist insurgents concocted in India in November 2005, which succeeded in toppling the King in April 2006. The growing politicization of the over one-hundred ethno-linguistic minorities in the country leading to the increasing use of the term ‘balkanisation’ to describe Nepal’s political reality – thus putting the Himalayan country alongside case-studies such as Afghanistan, Northern Ireland, South Africa and Bosnia. The election of a Constituent Assembly as the prerequisite for bringing the Maoist insurgents into mainstream non-violent politics. The extraordinary Supreme Court decision recognising the rights of sexual minorities. The abolition of the over 260-year-old Hindu monarchy in May 2008. And a Maoist revolutionary leader as Prime Minister.

Nepal’s current situation is delicate: the consequences of the possible failure of Nepal’s CA to promulgate at least a framework document and secure its extension by constitutional means would be dire for the country. Ongoing political uncertainty in the last year has produced  successive headlines, such as the 1 August issue of Kantipur on the difficulty of electing a new Prime Minister, the numerous landslides across the country, the renewal of the mandate of the United Nation Mission to Nepal (UNMIN), the integration of the Maoist combatants into the national army, an impending strike, the property bubble in Kathmandu, soaring inflation, a string of robberies in Baneshwar, the killing of yet another party activist, the failure to implement transitional justice mechanisms. Ultimately, this halting process is taking a heavy toll on Nepali society. News items on Ekantipur and the BBC Nepali Service (another victim of the UK government’s extensive cuts as underlined in a BNAC Press Statement) continue in the same vein.

However, Nepal is not a failed state and I do not believe it is on the verge of collapsing. The Nepali state is now at the centre stage of a dispute amongst socio-political actors over institutional restructuring and the reform of the Nepali polity in a more inclusive, egalitarian and democratic direction. It is because the Nepali state is such a resilient chameleon of an institution, capable of surviving and adapting throughout over two and half centuries of historical transformations, that it is so important and pivotal to Nepali politics at all levels.  While it is true that a certain line taken by academics of South Asian postcolonial critique would readily dispense with institutional analysis by relinquishing the category of the nation-state tout court as the unsavoury legacy of a ‘flawed modernity’, this theoretical stance is irrelevant to the majority of the citizenry. I could not disagree more: state structures – in South Asia as in the rest of the world – still play a critical function in shaping the societies that inhabit them. Contrary also to the dominant neoliberal paradigm, states are not vanishing: their nature and functions are only transforming within a highly interconnected world.

While Nepal’s peace process might be ‘fitful’ as aptly described by the April 2011 ICG report, it is neither absurd nor schizophrenic nor incongruous. The resolution of violent conflicts, like the one Nepal has endured for over a decade, cannot unfortunately be a linear, logical and smooth process – that scenario can only take place in the ‘no-gravity simulations’ of certain conflict-resolution primers prescribing one-fit-all solutions for very different situations. The reality on the ground is that the embattled nature of political compromises requires protracted negotiations over thorny issues and long-term structural adjustments, which inevitably issue into periodic stalemates, chronic standoffs, unholy alliances and frustrating delays.

The process of constitution-drafting, especially in post-conflict scenarios, mirrors these dynamics; its impasses are not of a legal nature, but a political one. Nepal’s constitutional transition confronts us with a complex equation with a vast number of context-specific variables in constant motion. At the moment, what remains a burning question, however, is mostly one of governance that requires those in charge to make steady progress with both the peace process negotiations and the constitution-drafting, without losing sight of the many contingencies of everyday governmental activity. A skilled navigator must endeavour to chart the best possible course to the ship’s final destination in the existing meteorological conditions without ever losing grip of the helm – a complex task, indeed.

About the author

Dr. Mara Malagodi is a Postdoctoral Associate in the South Asia Department and Teaching Fellow in the School of Law of the School of Oriental and African Studies (SOAS) of the University of London. She has a long-standing interest in Nepali law and politics with a comparative South Asian perspective and is the Treasurer of the Britain-Nepal Academic Council