Nepal’s struggle for a constitution – A primer
Nepal’s second Constituent Assembly has to deliver a constitution by January 22, 2015. But the country faces a deeply polarized polity, with little possibility of a broad based constitution being delivered by that day. HT spoke to a range of Nepali politicians and diplomats in Kathmandu last week, besides drawing on existing literature, to connect the dots and bring together an explainer of the constitutional process in Nepal; its history; as well as the nature of the current moment.world Updated: Jan 14, 2015 22:35 IST
Nepal’s second Constituent Assembly has to deliver a constitution by January 22, 2015. But the country faces a deeply polarized polity, with little possibility of a broad based constitution being delivered by that day. HT spoke to a range of Nepali politicians and diplomats in Kathmandu last week, besides drawing on existing literature, to connect the dots and bring together an explainer of the constitutional process in Nepal; its history; as well as the nature of the current moment.
Q. 1. In other South Asian countries, the constitutional question is settled. Why is Nepal writing a new constitution at the moment?
A. Nepal was rocked by a civil war for a decade between 1996 and 2006, when the Communist Party of Nepal (Maoist) decided to pick the gun and wage an armed revolt to establish a communist state. The country was then governed by the 1990 constitution, which provided for a constitutional monarchy and multiparty democracy. The monarch did not remain constitutional and took over power; democratic parties were left in the cold; the constitution was rendered irrelevant. The warring Maoist insurgents – who had by then realized that winning the war militarily was impossible - made an elected Constituent Assembly their bottom-line for ending the war. Their argument was that Nepal may have had several constitutions till date, but none of it was written by popularly elected representatives. This argument gained traction, and won the support of many of the country’s democrats, minorities and marginalised groups.
A deal was struck in 2005 whereby parties and Maoists came together; a People’s Movement was waged in 2006; the monarch had to surrender and accept sovereignty lay with the people; Maoists ended their war and became a part of the democratic structure; and elections were held for a Constituent Assembly in 2008.
Q.2. There were elections in 2008, yet there is no constitution till today. What happened?
A. The first Constituent Assembly failed. Elections threw up an unexpected result back in 2008. The Maoists emerged as the single-largest party, with 240 seats in the house of 601. Established forces like the Nepali Congress and the Communist Party of Nepal (Unified Marxist Leninist) trailed behind. Another new force – the Madhesi parties of Nepal’s plains – won over 80 seats. There was a new balance of power, but no force quite had the ideological and political dominance to push through their agenda. This was at the root of the problem.
All these forces had different priorities and political vision. NC and UML were wedded to a traditional liberal democratic system and saw the Maoists as a threat to both their vision of the state and their political strength. The Maoists wanted to go beyond what they called ‘bourgeoisie democracy’; wanted to ‘restructure the state’ including key components like the army which others interpreted as moves to ‘capture the state’. The Madhesi parties and ethnic forces saw Nepal’s problem as one rooted in an exclusionary and unitary state; they sought to redefine Nepali nationalism, make it more inclusive and federal – which took into account identity-based discrimination by the Hindu hill upper castes. These conflicting visions played out in the CA on a range of questions, leaving a deadlock. Parties had different views on forms of government, on the judiciary, on citizenship, on electoral system, and on state restructuring, particularly federalism.
But it was not just the ideological divergence. Power-sharing and political consensus was at the heart of the peace process. But after the elections, this consensus broke. The first government was led by the Maoists but excluded the Nepali Congress, deepening mistrust. It lasted nine months, only to be replaced by a coalition that excluded the Maoists. The third government included UML and Maoists, but excluded NC and most Madhesi parties. And the fourth government, of Maoist and Madhesi forces, excluded both NC and UML. So there was never a time when all parties had the incentive to work together. Their energies were invested in ousting the government of the day, not allow it to take credit for any achievement, and instead get back to power. Instability was the norm. The CA’s role diminished – and instead the parliament (which is what the CA doubled up as) became all important.
The final breaking point was over the question of federalism. NC and UML were reluctant federalists, and pushed an administrative re-division of the state while the Maoists, Madhesis and ethnic groups were keen on identity based federalism (explained below). The CA’s term was originally for two years. After repeated extensions, the Supreme Court stepped in and said the CA could not extend its tenure yet again. Consensus was elusive; the CA ended in 2012, without a constitution being written.
Q.3. So were these wasted years? Was Nepal able to achieve anything through these years?
A. No, it was not an entire waste. Nepal had packed in a lot – remember this was also a country transforming from war to peace, where an insurgent radical left group was engaged in democratic politics. Maoists had their own People’s Liberation Army. A 19,602 strong force, the PLA fighters were in UN-supervised cantonments for over five years. The peace deal held they would be integrated into security forces and rehabilitated. But this became a subject of deep acrimony – the nature of integration, the modality, the numbers to be integrated got tied in with which party was in power at that moment. Maoists said they will not let go of their coercive instrument till they were in government; the older parties said they would not cooperate on constitution writing till the Maoists had their army.
Finally, at the end of 2011 and 2012, this question got resolved. Around 1500 Maoist combatants got into the Nepal Army while the rest took cash packages and retired. It was not ideal, for it left many disillusioned and other provisions – like the ‘democratisation of the Nepal Army’ never truly got implemented. But it did represent a leap. The country had moved from having two armies to one.
There was also simultaneously the opening up of democratic space. Various groups, which had otherwise been suppressed by a brutal state apparatus, found their voice. The monarchy was gone. The Hindu kingdom was in the past, opening up room for religious pluralism. Popular awareness about rights grew.
Q.4. Coming back to the constitution, didn’t the CA end in 2012? What do we have now?
A. The first CA did end in 2012, but parties realized they could not go back on their promise to have a constitution written by a popularly elected house. So they set up an interim election government led by the Chief Justice of the day Khila Raj Regmi. A second CA election was held in November 2013. Tables now turned. NC emerged as the single largest party, with UML a close second. The Maoists were reduced from 240 to 80 seats and the Madhesi forces also dipped to 50 seats. NC’s Sushil Koirala became the new Prime Minister, stitching a coalition with UML.
All parties had promised they would write the constitution within one year of the first sitting of the house, which is January 22, 2015. This deadline is now less than ten days away, which explains the sense of urgency and crisis. Do note that the term of the CA-parliament is much longer, of five years. So missing the deadline will not mean that the CA collapses again.
But it will mean that credibility of the political class – which has already dipped because of their earlier failure – will erode drastically. Extreme right forces of monarchists and those who believe in Hindu kingdom are waiting in the wings; extreme left forces who do not like the Maoist engagement with open politics want the constitutional process to fail; ethnic separatists not satisfied with the idea of federalism believe that CA’s failure will open room for secessionist politics. Having a constitution is important to institutionalize the principles of federalism, democracy, republicanism, and secularism and protect the middle democratic space in Nepal.
Q.5. So what is the current state of play?
A. Parties are divided both on the substance of the constitution as well as the process to be adopted for its promulgation. The polarization between the ruling NC-UML combine and the opposition Maoist-Madhesi alliance is visible inside the Constituent Assembly and on the streets. Kathmandu and the Tarai region were crippled because of a strike called by the opposition on Tuesday; they also boycotted the CA meeting on Tuesday.
The two sides remain divided on five key substantive issues. Here is a glimpse into their positions and possible meeting points:
Form of government: NC is committed to a traditional Westminster parliamentary system; the UML had spoken of a directly elected executive PM; the Maoists have demanded a strong directly elected president.
But positions have shifted. The NC and UML have now come together to back a ‘reformed parliamentary system’ – with provisions to ensure a degree of stability. Nepal’s parliamentary history has been chequered with over twenty governments in twenty years, and reforms are meant to ensure that an elected government is assured of a minimum period in power before confronting a vote of no confidence. The Maoists – in the last CA – had come around to accepting a mixed form of government with a PM elected by and accountable to parliament and a directly elected president – with powers divided between the two. Critics point out this will completely paralyse decision-making in a political culture where two power centres often clash. Maoists have reiterated this demand, but in the face of their depleted strength, this does not look possible. But as a top Maoist leader told HT this week in Kathmandu, “We can’t go back to a pure parliamentary system because this is what we fought against. A mixed system with some powers to the president is out bottom-line.” The Madhesi parties – while recognizing that they benefit more if there is a pure parliamentary system – have gone along with the Maoist demand in return for Maoist support on its stance on federalism.
A compromise formula, as a leader involved in negotiations, put it would include a ‘reformed parliamentary system’, with some powers to the president, elected by both houses at the centre and provincial assemblies.
Judiciary: Parties are also divided on whether to constitute a separate constitutional court to adjudicate on constitutional disputes, including those between centre and the states – or whether to have a constitutional bench within the existing Supreme Court. The Maoists and Madhesi forces, deeply distrustful of the existing judiciary, back a separate court while NC and UML back a separate bench.
A UML leader said, “If other issues fall into place, we can consider a separate court for a limited period of time, say ten years.”
Electoral system: The NC and UML would prefer a completely first-past-the-post election system for the lower house of the central parliament. The Maoists and Madhesi parties believe that there must be a mixed system – which includes both FPTP and Proportional Representation for the sake of inclusion. A mixed system has been accepted in principle, with reforms made to the PR system so that there is a ‘closed list’ – this will help in letting citizens knowing who would elected if they vote for a particular party on the second PR ballot instead of empowering party bosses to arbitrarily pick candidates.
The debate currently is about the ratio of the two systems. NC-UML would like a 80-20 or 70-30 ratio in favour of FPTP; Maoists and Madhesis would prefer a 50-50 ratio. A compromise could be found around 60-40 ratio in favour of FPTP.
Citizenship: A fourth issue that has acquired prominence in recent weeks – even though it has not been considered a ‘make or break’ issue by parties – is citizenship. While Nepal’s interim constitution allows for citizenship by descent if either of the parents – father OR mother – is Nepali, the new proposal makes it incumbent for both the father AND mother to be Nepalis for a child to acquire citizenship. This has been – rightly – interpreted by women activists and human rights groups as a blatantly discriminatory provision, which denies citizenship through the matrilineal line. It will leave millions stateless. And the provision has been inserted because of the fear among many Nepali ultra nationalists that Indian men would use this provision to marry Madhesi women of the plains; their children would be Nepalis and this would alter the demographic balance of the region.
As a top observer put it, “This is like the love jehad kind of conspiracy theory. How can you, in this century, not allow the mother to pass on citizenship to her child? On Monday night, parties seemed close to replacing the ‘And’ with ‘Or’ – but the UML backed out at the last moment, leaving the issue hanging. A detailed explanation of the citizenship issue is available on the Nepali feminist website, Chaukath Nepal.
Q.6. If there are possible compromise points on these issues, what is at the heart of the dispute? Why does the Tarai often figure in the federalism debate?
A. The heart of the problem remains federalism, which had led to the failure of the first CA. There are three layers to this dispute.
The first is about the vision of Nepal. NC and UML were reluctant federalists – who came around to accepting the idea of state restructuring only after popular movements. They believe that the Nepali state, in its unitary avatar, through the notion of common undifferentiated citizenship, could deliver rights to all – decentralization was sufficient. This is in contrast to the Maoists, Madhesi forces and ethnic groups who see it as rather central to their politics. Their entire diagnosis is based on Nepal being an exclusionary state and federalism, as a matter of self and shared rule, being a possible way to transform its character.
The different degree of commitment shapes their respective views of federalism. NC and UML believe that if the state has to go federal, priority must be given to administrative convenience, economic feasibility, and resource division. As Prime Minister Koirala has told HT in the past, “We are country with no parliament building of our own in Kathmandu. How will all these states have their own legislatures, own infrastructure? We must have a limited number of provinces?” Prioritising these principles, the NC-UML combine has proposed seven provinces.
The weakness of this approach – say the Maoists and others – is that in most of these provinces, hill upper-castes will be in majority. The idea of federalism, they argue, is to create a structure where other social groups can enjoy political power too. For this, they propose 10 provinces, in most of which hill ethnic groups or Tarai dwellers will have a majority. The issue is also juxtaposed with the idea of giving provinces names based on ethnic identities. UML chairman K P Oli has made it clear no province can have any ethnic name – the opposition wants to provide an ethnic cum geographical name to gives marginalised communities a sense of ownership and address what they term historic injustice.
The third element – and perhaps the most contentious – dominating the issue of federalism is the number of provinces in the plains. Madhesi parties had begun by demanding one province across the southern plains of Nepal (adjacent to northern parts of West Bengal to Uttarakhand belt on the Indian side of the border). They have now settled for two provinces, of Madhes in the east and Tharuhat (dominated by Tharus) in the west. NC-UML would ideally prefer all provinces to be carved out on north-south vertical basis – but Tarai forces see this as a plot to divide their strength and deprive them of political power. Hill dominated parties have their own fear psychosis. They suspect that this will not only make Madhes disproportionately powerful in Nepal, but also add to its leverage – it can block the border with India and deprive the hills and Kathmandu of basic goods when it wants.
This is all manifesting itself in a debate over six districts in the Tarai (Jhapa, Morang, Sunsari in the east; Chitwan at the centre; and Kanchanpur and Kailali in the west.) NC-UML want to integrate these districts with the hill province of that region; Madhesi parties are in no mood to compromise over what they see as Tarai territory. Various compromise formulae have been proposed – of Jhapa, Chitwan and Kanchanpur which have a hill majority going with the hills and the remaining districts getting embedded with the Tarai provinces; of dividing each district broadly on the basis of demographics; of making them union territories. But none of it has broad support. In some ways, Nepal’s complex federalism debate boils down to the fate of these districts.
Q.7. What happens now that there is a difference on these issues?
A. The interim constitution, which governs Nepal at the moment, held that the CA must draft the new constitution by consensus – but in case that does not happen, it can be put to vote clause by clause and passed through a two-thirds majority. This approach – of using the voting process –is what the NC-UML combine prefers. They argue the stalemate can be endless, and the democratic route must be used to push through a statute, and that people have waited enough. There is a tinge of opportunism in this approach, for it stems from the fact that NC-UML – backed by a range of other parties, including a royalist right wing force – can muster up a two-thirds majority in this CA. It is unlikely they would have supported a constitution through vote in the last CA, where they were in a minority.
The Maoists said, in their manifesto, that they would support a two-thirds majority process if there was no consensus. Their position has however changed with their depleted strength. Both the former rebels and the Madhesi forces argue that a constitution by vote will only deepen divisions; that they will not own such a constitution; that it will not address the aspirations of the country’s marginalised groups; that such an approach will only vindicate extremists on the left who always said the constitution was a sham and separatists in Tarai; and that all four key forces – who were behind the 2006 movement and 2007 interim constitution – must work together to institutionalize federalism, democracy, republic and constitution together. This side argues that NC-UML are not even trying to forge a consensus and engage in give and take negotiations – with the arrogance of their numbers, they want to sideline the newer forces completely.
This process is now playing out in the CA. A political dialogue and consensus committee of the CA was unable to arrive at a consensus on contentious issues. But its report has now been submitted to the CA full house. NC-UML wants the CA to initiate a process that will eventually enable voting on each provision. Maoists and Madhesis want a top level political consensus first, and argue even the CA process cannot be initiated in the absence of consensus. Either way, in this polarized landscape, it is unlikely that the CA will be able to produce a constitution draft – let alone a constitution by January 22.
Q.8. What is India’s position on Nepal’s constitution and what are the stakes for New Delhi?
A. When Prime Minister Narendra Modi visited Nepal in August, he addressed the country’s CA. Despite apprehensions in Kathmandu that the new BJP government may reverse support to Nepal’s transformation, he – drawing much applause – supported a constitution for a federal democratic republican Nepal. He urged lawmakers to adopt a rishi-man, sage-like, mind and take the long view. He also said the constitution must be inclusive and give a sense of ownership to all citizens, across regions. In his next trip to Nepal in November, Modi went a step ahead and made a categorical case for a constitution on time, by January 22, and through consensus. He explicitly said that a constitution by a vote, through numerical majority, is not desirable – and there must be a statute that gives a sense of ownership to Maoists, to Madhesis, and to pahadis – people of hill origin.
There were murmurs of dissent against Modi for expressing his view on an issue that had divided Nepali actors. But another school of thought hailed it. India has been an actor in Nepal’s peace process. Maoists and parties had arrived at an understanding in New Delhi initially. Delhi desired peace and stability – and a constitution not accepted by large segments of political opinion would only cause more instability. Modi’s approach also was a refreshingly transparent way of laying out Indian policy. India has not expressed a public view on any of the constitutional issues – but quietly, it is encouraging all Nepali parties to moderate their position, strike a deal, arrive at some common understanding.