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Nepal’s Divisive New Constitution: An Existential Crisis
Nepal’s Divisive New Constitution: An Existential Crisis
Nepal’s Constitution (II): The Expanding Political Matrix
Nepal’s Constitution (II): The Expanding Political Matrix
Table of Contents
  1. Executive Summary
A woman crosses deserted road during general strike called by hardliner faction from former Maoist rebels to protest against first draft of new constitution, Kathmandu, 24 July 2015. REUTERS/Navesh Chitrakar
Report 276 / Asia

Nepal’s Divisive New Constitution: An Existential Crisis

Since it was passed amid deadly protests in September 2015, Nepal’s new constitution has deepened ethnic, social and political fractures. The country’s national parties and protesting groups need to find ways to address constitutional disagreements and underlying disputes. There is a clear risk of escalating violence unless all sides understand that without compromise and good faith Nepal faces an existential threat.

Executive Summary

On 20 September 2015, Nepal’s new constitution passed amid deadly protests by Madhesi and Tharu groups across the southern Tarai plains that continued for months, leaving 57 dead. Protesting groups said the statute backtracked on addressing structural discrimination. The protests had deep support in ethnic Madhesi Tarai communities, reflecting a profound, increasing sense of alienation from the state. A 135-day blockade of vital supplies by Madhesi civic and political groups, partially supported by India, has ended, but as no political solution is on the table, the protests are almost certain to resume. To stop violent polarisation and a breakdown of social relations, national parties and protesting groups must urgently agree on how to manage contentious issues, with timelines, guarantees, and a role for civic participation. A sustainable, equitable social contract is necessary for lasting peace and reconciliation.

After the devastating earthquakes in spring 2015, the largest parties in the Constituent Assembly decided, amid controversy, to fast-track a new constitution so as to fulfil a longstanding peace process commitment and enable them to focus on reconstruction. Some administrative and structural reforms mandated by the 2006 Comprehensive Peace Agreement (CPA), 2007 Interim Constitution and other political agreements are enshrined in the new constitution. But Madhesi, Tharu, janajati, Dalit, religious minorities and women’s groups – all considered historically marginalised – believe the new statute and the process by which it was rushed through diluted commitments to meaningful federalism, redress for historical, structural discrimination based on ethnic and religious identity and gender, and democratic consultation.

There is disagreement over boundaries of new states, electoral representation and affirmative action, constituency delineation and citizenship-related clauses. Supporters of the new constitution feel much has already been achieved and say an excessive focus on identity-based grievances threatens Nepal’s unity, integrity, even sovereignty. The objections of those who demonstrated against it have their roots in long-running social disagreements on what it means to be Nepali and whether a homogenous conception of Nepaliness has led to structural discrimination against groups that do not conform to the behaviour and values of hill-origin, Nepali-speaking, upper caste Hindu communities. 

The blockade was an extreme form of protest with complex consequences, including grievous harm to the weakest and poorest sections of Nepali society and alienating communities the protestors should have been making common cause with. Yet, judging it a failure as a tactic should not substitute for a careful assessment of what is in effect a social movement in the Tarai.

All political parties and most protesters agree that the way forward is to amend the new constitution, not scrap it. In January 2016, the major parties passed two amendments related to more inclusive representation in state organs and delineation of constituencies. Madhesi parties and protestors say these do not adequately address their grievances. Like the constitution, they were adopted unilaterally by the largest parties, losing the legitimacy they would have had as the outcome of a political negotiation. 

Positions are not irreconcilable, but the prerequisites for any solution – respect, trust, political will, a degree of selflessness – are in short supply. The deficit is fuelled by ideological struggles to maintain a status quo that challengers say cements discrimination and supporters say protects the country, and by the behaviour of political parties, their lack of internal democracy, factionalism and opportunism. 

There is clear risk of escalating violence in the Tarai. The depth of social discontent, lack of fruitful negotiations and disillusion with Madhesi parties is creating room for radical positions. Mainstream national parties are also in the Tarai, and some are inclined to launch counter protests, which likewise lead to clashes. The security forces are seen as discriminating against Madhesis and using excessive force. Employing them repeatedly to quell local protests fuels anger and radicalisation, could encourage armed Madhesi groups, of which the region has a history, and might also allow a fringe Madhesi secessionist movement to gain traction. While unlikely to be successful or widespread, it would increase the volatility of a complex region.

If implementation begins before these issues are addressed, the mainstream parties risk wholesale rejection of the constitution by a large section of the population. Discussions are ongoing in government about conducting local elections; these too carry grave risks of violence, boycotts, intimidation and, in some areas, rejection of the state and its political system. 

The vision of Nepal as a functioning, tolerant, forward-looking, multi-ethnic society presented in the agreements that were reached after the armed conflict between the Maoist movement and the state ended is in crisis. Those documents are the basis of today’s polity and cannot be replaced unilaterally. Forcing acceptance of a flawed constitution could end the political transition and trigger unmanageable new conflict.

Recommendations

To manage tensions 

To the Government of Nepal and the ruling coalition: 

  1. Restore trust with Madhesi and Tharu populations by forming an independent mechanism to investigate the protest-related deaths and avoid a heavy-handed security response during protests.
     
  2. Refrain from ultimatums and provocative comments.
     
  3. Address the economic and humanitarian consequences of the earthquakes and blockade.

To the Madhesi political parties:

  1. Rebuild trust with all social groups which live in the plains.
     
  2. Refrain from arbitrary protest strategies, provocative speech and violence.

To all Nepali political parties:

  1. Agree urgently on terms of reference for a mechanism on state boundaries.
     
  2. Postpone local elections if there is no roadmap to address constitutional disagreements.
     
  3. Monitor conflict risks and potential mitigation measures in contested plains and hills areas regularly. 

To promote reconciliation and reduce the risk of violence if implementation of the constitution begins 

To Madhesi and other civil society:

  1. Lead the way in social dialogue efforts in the Tarai between all social groups.
     
  2. Create a group of respected, credible national and local figures to explain constitutional issues and coordinate messaging when tensions rise.

To the Government of India:

  1. Maintain an open approach to all sides.

To development partners, including India and China:

  1. Assess performance of the security forces and the National Human Rights Commission and calibrate support and training accordingly.
     
  2. Refuse support for local elections if a roadmap agreed with agitating groups is not in place.
     
  3. Ensure conflict sensitivity in reconstruction and development projects.

Kathmandu/New Delhi/Brussels, 4 April 2016

Report 234 / Asia

Nepal’s Constitution (II): The Expanding Political Matrix

Nepal’s major political parties must urgently agree on a roadmap to negotiate on federalism and write the new constitution, whether by holding elections to a new Constituent Assembly or reviving the previous body.

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Executive Summary

The peace process and stalled constitution writing exercise, in particular the debate about federalism, have expanded Nepal’s political matrix. Identity politics is a mainstream phenomenon and new ethnic-based and regional political forces are coalescing. Actors who want a federal structure that acknowledges Nepal’s many identities have allied, overcoming other political differences. The Maoist party has split. Once centrist forces have moved to the right. All parties are grappling with factional and ideological divisions. Old monarchical forces are more visible. How these political shifts will settle depends on the parties’ decisions on resuming constitution writing and future electoral calculations. The Constituent Assembly has been dissolved after failing to deliver the new constitution on the 27 May deadline. The constitution was to establish federalism and address the demands of marginalised groups. Social polarisation over these issues compounds constitutional uncertainty and the legislative vacuum. The tensions around federalism and fluid political equations threaten to provoke volatile confrontations.

The elections to the Constituent Assembly in 2008 changed Nepal’s political landscape, and not only because the Maoists unexpectedly emerged as the largest party after ending their decade-long insurgency. The new Madhesi parties representing the plains populations of the southern Tarai belt became the fourth largest force in the assembly. The Maoists and Madhesis argued Nepal needed what they called ethnic federalism. Devolution of state power to new states created along ethnic lines is meant to address the historical marginalisation of janajati or ethnic or indigenous groups and Madhesis. Janajati groups did not become a mainstream parliamentary phenomenon then, but the issue became the centrepiece of the peace process, which envisaged sweeping structural changes. Since the election, the traditional Nepali Congress party and the Communist Party of Nepal-Unified Marxist Leninist (UML) have rejected many aspects of the proposed socio-political transforma­tions, notably by opposing identity-based federalism.

In May 2012, when it looked as if identity-based federalism was slipping away, janajati politics came together. A multiparty caucus of ethnic Constituent Assembly (assembly) members became assertive. An informal pro-federal­ism alliance emerged, which included the Maoists, a large front of Madhesi parties and the janajati caucus, putting identity at the centre of Nepali politics. There are also social or intellectual movements associated with all pro-fed­eral­ism actors. Outside political circles, the general public is increasingly asking that all parties clarify their positions.

The ramifications of the Maoist split, which was made official in June 2012, are unclear. The smaller new party says the Maoists surrendered too much during the peace process. But the division was also about personal rivalries and ambitions. The breakaway party says it will not immediately launch another war and is reaching out to diverse, sometimes mutually hostile actors, including former Maoist fighters, ethnic activists and ultra-nationalists. The establishment party – what remains of the original Maoist party after the split – is much stronger, but has serious problems of discontent and factionalism within its ranks. Both Maoist parties are struggling over assets and cadres; these contests could spread even to factions within the parties. A protracted feud is also certain over which of the two parties is more faithful to the agenda of transforming Nepal and to leftist ideology.

The Nepali Congress, the second largest party after the 2008 elections, has led the fight against federalism and inclusion. It has other serious problems, including a leadership crisis, factionalism and discontent among top leaders. Meanwhile, the UML, the third largest party in the last assembly, took disciplinary action against members sympathetic to ethnic demands. These members are under pressure from ethnic groups to choose between their party, which refuses to compromise on identity-based federalism, and their constituencies, which are increasingly favourable to it.

Both the Congress and the UML are popular in Nepal’s opinion-making circles and must decide if they want to cater primarily to the upper-caste, upper-class and urban elites, or return to a broader social base. They have moved from occupying what was traditionally considered the centre in Nepali politics to being on the right. This space is for those who claim that federalism, political inclusion and minority rights damage national unity and meritocracy. Actors in this position consider that inequality has primarily economic bases and that policies addressing ethnic discrimination harm individual rights. They define themselves as democratic as opposed to the Maoists and ethnic groups, who they present as illiberal and to the far-left or subversive.

The far-right is occupied by a monarchist party and other formerly royalist actors, who have gained some visibility and confidence. This is more due to the mainstream parties’ sloppiness and bad faith than widespread nostalgia for the monarchy. Although there is little chance of the king returning, other aspects of the old system, particularly Hinduism, could be deployed in new political ways to counter the anxieties that stem from federalism.

Cooperation between the Maoists, Madhesi front and janajatis would have seemed unlikely until recently, as there are many contradictions between these groups. These will persist, but the parties are likely to still find common ground. Their ability to forge and maintain electoral alliances, however, will depend on local circumstances and will be challenging. Janajati leaders will compete with Maoists, old Maoist-Madhesi tensions could resurface and Madhesi-janajati relations are still often far from warm.

The Madhesi parties, prone to repeated splits, are unlikely to lose their collective hold over Madhesi loyalties. Yet they too must recalibrate. Their repeated splits, the perception that they are more corrupt than the other parties and increasingly visible caste politics could reduce their collective bargaining power.

The ground has shifted beneath Nepal’s peace process. New forces – organised and spontaneous, pro- and anti-federalism, inside and outside parties – complicate negotiations but must have their say. The parties and leaders assume there is no alternative to themselves. They are wrong. The anxieties and expectations surrounding federalism are a widespread phenomenon. The shift towards potentially polarising ethnic politics is encouraged because mainstream political actors are scattered, often vague and sometimes dishonest, distracted by mutual sniping and prone to making undemocratic and unsympathetic deals. These mainstream politicians need to set their own houses in order, listen to others, know what they stand for and get on with the constitution. Otherwise they risk ceding political space to extremists of every hue who might appear more pragmatic and sympathetic to a frustrated polity.

Kathmandu/Brussels, 27 August 2012