Nepal, a constitutional impasse

Nepal is still awaiting a new constitution to complete its transition from a decade of conflict to democracy. So far, political leaders' control of the drafting process has handicapped progress. But the four-year debate has also created a foundation on which to build, says Leena Rikkila Tamang.

Leena Rikkila
21 June 2012

Nepal is still in search of a new constitution, six years after the end of a decade-long armed conflict and four years after an election brought the political representatives of the country's Maoist insurgents to power.

Nepal's political life since 2008 has been dominated by debate over formulating a constitution that would define the framework and distribution of powers in the state, with the issue of federalism the most contested issue. The constituent assembly (CA) had reached a series of deadlines to finalise the constitution without coming to agreement, the most recent being 27 May 2012. The days before the new deadline were marked by intense negotiations, rallies, tension and shutdowns around the country. Some people were protesting about the proposed design of the federal system; others simply wanted to press the CA to complete the process.

The day arrived, and yet again political-party leaders failed to agree on a federal structure, leaving the constitution unfinalised. In a dramatic turn of events late on 27 May, the Maoist-led government dissolved the CA (which has also been functioning as Nepal’s parliament). The cabinet announced a proposal to hold elections to the CA on 22 November 2012, though other parties object to this procedure.

The CA’s original tenure was two years, meaning that it was given a deadline of May 2010 to complete its work. After four successive extensions, the supreme court ruled in December 2011 against any further extensions. Until the last hour on 27 May, it looked as if the leaders had found a compromise formula on federalism and the draft was all prepared for printing. In the end, agreement remained elusive, and Nepal was propelled into deeper political uncertainty. The result left Nepali citizens both shocked and disappointed.

There had been increasing and serious criticisms of the constitution-drafting process of the past year on the grounds that it was becoming ever more exclusionary. Members of the constituent assembly, representatives of Nepal's indigenous people and others felt that the three major parties had taken over the process. Even on 27 May itself, party leaders gathered to discuss the final constitution outside the parliament, leaving the CA members to wait in the assembly hall for the body's final, decisive session to start. It never did.

A flawed process

In principle, the CA process was meant to be inclusive. This aspiration was given a boost by the 2008 elections, which increased the representation of several marginalised groups: women, now almost a third of the CA’s 601 members (from a twelfth in the previous parliament); Dalits ("untouchables"), now a twelfth, and holders of fifty seats (from zero before); indigenous members, now over a third, with 218 seats; and people under 35 years of age, with almost a quarter of seats.

But despite the inclusion of these groups, important decisions were left to informal discussions between senior party leaders outside the formal CA procedures. The CA was effectively circumvented and its debates aborted; the prescribed public consultations and hearings never took place.

This left many CA members frustrated. Sunil Pant, for example, says: "While I feel I’ve made progress as a representative for the transgender community, the general view seems to be that an individual representing a particular group is incapable of contributing to other issues. So I wasn’t invited to the crucial discussions on federalism, state restructuring, governance, climate change...Other then 14-15 major party leaders, the rest of the CA members are considered as minorities in terms of participation."

The problems accumulated when critical decisions were postponed to the very last days of the CA’s tenure. "The discussions which should have taken place two years ago came onto the agenda at the eleventh hour", says Kalpana Rana, coordinator of the women’s caucus in the constituent assembly, who adds: "we were not consulted when citizenship and the electoral system were decided."

A new regroupment

Why was everything left so late? There are several reasons. Nepal’s constitution-writing process was very much part of the peace process following the conflict of 1996-2006, and the integration of the Maoist army into the regular army took longer than envisaged. The Nepali Congress made a resolution of the Maoist army issues a condition of wrapping up the constitution. The inheritance of division meant that even agreeing the rules of procedure took about six months at the start, and frequent changes of government consumed leaders' precious time and attention. More deeply, there was a prevailing mindset that a few can decide for the many, that party leaders have a mandate to talk on everyone’s behalf.

Laxman Lal Karna, vice-chair of the Sabdahana party and a member of the constitutional dispute-resolution sub-committee's task force, explains: "We relied on the informal, high-level political mechanism between the top leaders of the three parties for one and a half years, but made no progress at all. Had we followed the CA rules for dealing with disputed issues, a voting procedure, we would have at least completed the first draft of the constitution."

The leaders, however, underestimated the new political empowerment of the marginalised groups represented in the CA. The latter refused to accept the recommendations of their own party chiefs, formed networks and alliances, and got support from civil-society organisations. There were mutual suspicions, but towards the end of the journey these groups were able to overcome partisan loyalties and develop a sense of solidarity and mutual tactical support. This was reflected in the protests prior to 27 May, which eventually forced the leaders to alter some of the deals reached - though not to persuade them to make a breakthrough on the overall constitution.

A compromise system

In the meantime, Nepal's interim constitution of 2007 prevails. This consolidated the transition from constitutional monarchy to multiparty republic, from a Hindu state to a secular one, and from a unitary state to a federal state - even if it lacked details. The interim constitution also promises that formerly marginalised groups will be represented on a proportional basis in political and state institutions.

Many of the most controversial constitutional issues had been settled before the last-minute deadlock. The proposed structure was a compromise between the current parliamentary system, an executive presidency, and a directly elected prime minister: in effect a semi-presidential or mixed system with a distribution of authority.

The electoral system was also to be a mixed, "parallel" system with electoral quotas to allow inclusion of marginalised groups (the CA elections of 2008 already established quotas for women, Dalits, indigenous people, Madheshi from an area of southern Nepal, people from remote areas, and "others"). Since then, various groups - afraid of any backsliding from the principle of inclusiveness in the future parliament - have called for the introduction of proportional representation.

The federal debate

Even with a four-year tenure, the constituent assembly was unable to reach consensus on a federal design for the future Nepal. The relevant assembly committee proposed fourteen provinces based on a combination of ethnic identity and economic viability; a dissenting opinion suggested six provinces based on mainly economic grounds. A high-level commission established to reconcile these different views then recommended ten provinces (though this conclusion was by no means unanimous).

The political-party leaderships then agreed on an eleven-province model, arguing that it had the double advantage of ensuring multiethnic states and leaving the current district structure in place. The politicians then had to backtrack under pressure from indigenous people and Madheshis.

The CA is now dissolved, its members no longer parliamentarians (though the parliament still formally exists and its secretariat continues). The interim constitution is in force. In the absence of a new constitution, the only way forward is via a political decision reached by consensus. A split in the dominant Maoist party, involving the breakaway of a third of the top leadership, shows how difficult such consensus will be to achieve.

In any case, new elections will have to take place - though whether they will be conducted under the current government is unclear (the political parties are demanding its resignation). Nepal's election commission has instructed the government to clear the legal hurdles by 22 July so that elections become even theoretically possible on 22 November. Other options floated by the parties to resume the constitution-making process are: reinstating the CA for a short period of time, forming a commission to draft a constitution based on the work done in CA (which could then be promulgated by a referendum or by the next parliament), and holding high-level round-table talks through which the new constitution is finalised and promulgated. For any of these options to materialise, a new national-unity government is probably needed.

The democratic impulse

If and when elections take place to resume the process, it is vital that Nepal's people are given a chance to discuss and debate the different federal options. The parties also need to be clear in their manifestos what they stand for so that people know what they are voting for, while avoiding anything in their manifestos that could provoke communal violence.

A key lesson of the failed constituent-assembly process is the need to respect the rules of parliamentary procedure. If these rules had been followed and the assembly allowed to debate and vote on contested issues, the stalemate could have been avoided. Then, party leaders trusted with a mandate to forge a consensus in lieu of the CA walked into an abyss from which they could not find their way out.

Nepal will eventually get its new constitution - even if it takes new elections and a new mandate. There is much in the work of these four years to build on: committee reports, debates, discussions, empowered groups, and an informed cadre of second-rank political leaders capable of taking up influential positions in the new political mechanisms. Most important of all, the people of Nepal are no longer satisfied with anything other than a democratic constitution that both ensures their rights and is clearly set out in a democratic way. In spite of the current constitutional and legal limbo, Nepal’s history shows that as long as there is a will there is a way…

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