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Nepal’s Constitution (I): Evolution Not Revolution
Nepal’s Constitution (I): Evolution Not Revolution
Table of Contents
  1. Executive Summary
Nepal Conflict Alert
Nepal Conflict Alert
Report 233 / Asia

Nepal’s Constitution (I): Evolution Not Revolution

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

Nepal’s peace process was to end with a new constitution. Yet, after four years of delays and disputes, the country’s main political parties were unable to agree on federalism, a core demand of large constituencies. On 27 May 2012, the term of the Constituent Assembly, which also served as parliament, ended without the new constitution being completed. The parties must now decide what to do next: hold an election for a new assembly or revive the last one. This will be hard. Obduracy on federalism, bickering over a unity government, a changing political landscape and communal polarisation make for complex negotiations, amid a dangerous legislative vacuum. The parties must assess what went wrong and significantly revise the composition and design of negotiations, or risk positions hardening across the political spectrum. Talks and decision-making need to be transparent and inclusive, and leaders more accountable. The public needs much better information. None of this will necessarily mend the deep social rifts, but it would reduce space for extremists and provocateurs.

Until there is a new constitution, Nepal is guided by the 2007 Interim Constitution and the 2006 Comprehensive Peace Agreement (CPA), which provides for the state to be restructured to address entrenched inequalities, often rooted in discrimination based on identity. But federalism is not only about devolution or quotas. For groups that feel their culture, history or language have been sidelined by a unitary state-sponsored Nepali identity, it is also about dignity and recognition. A standoff has emerged between upper class and dominant hill-origin upper-caste populations on the one hand, and ethnic communities often described as historically marginalised on the other.

These divisions map clearly on to party politics. The traditional parties are the Nepali Congress and the Communist Party of Nepal (Unified Marxist-Leninist), commonly known as UML, which emerged as the second and third largest parties in the 2008 elections to the Constituent Assembly. These parties, currently in the opposition, are sceptical about acknowledging identity in a federal model. They have been encouraged by an upper-class, upper-caste backlash against the new pro-federal and pro-iden­ti­ty politics order. The two main forces in the ruling coalition, the Maoist party and the Madhesi Morcha, a front of parties representing Madhesi populations of the southern Tarai belt, were the largest and fourth largest in the assembly, respectively. They coalesced with a cross-party caucus of assembly members from janajati groups (the numerous ethnic groups outside the Hindu caste system who claim distinct languages, cultures and sometimes historical homelands) into a powerful pro-federalism alliance, with connections to social movements. They say the agenda should be set by the majority, namely themselves.

Public discussions have focused on whether “ethnic states” should be established. Sceptics of federalism sometimes define these as mono-ethnic entities where populations other than the majority ethnicity would be unwelcome. Yet discussions in the assembly made it clear that no group would enjoy a majority in any state. Nepal’s extraordinary ethnic diversity simply does not allow this. Demands for preferential political rights to be granted to the dominant ethnic groups in each state were ceded two years ago. Madhesi, janajati and Maoist actors do, however, care about how many states there will be, naming rights, and boundaries that give them a slight demographic and possibly electoral edge. Madhesi parties also focus on inclusion in state institutions.

The assembly ended because leaders of all parties, new and old alike, made secretive, top-down decisions. They were dismissive of their own members and never explained the issues at stake to the public, relying instead on fear-mon­ger­ing and extreme rhetoric. Throughout the peace process, decisions on the main points, whether the constitution or the former Maoist army, have been hostage to bargains on government formation, enmeshing power sharing with substantive issues.

The peace process has relied extensively on a tired idea of consensus between the parties. Until the constitution was completed, the main parties were to agree on all major decisions to ensure broad buy-in. This sometimes prevented the worst case scenario, but it also devalued democratic participation. Instead of discussions in the assembly on real issues, senior leaders cobbled together inadequate or unrealistic deals purportedly to save the peace process, but often about their personal futures or getting a share of government. Deep disagreements between the parties were papered over. Donor activity has sometimes unwittingly supported this tendency.

As no single party won an absolute majority in the 2008 elections, the contingencies of unstable coalition politics allowed the parties to throw government formation into the fray with constitutional issues. The deep polarisation over federalism meant that on 27 May 2012, any constitution could have elicited violent protests. The situation has calmed, but triggers remain. There is no agreement on the way forward and no minimum common understanding of federalism.

When the assembly ended, Nepal also lost its legislature. The absence of an elected parliament, coupled with the high trust deficit between the government and opposition parties, bodes ill for stability. For all the parties, deciding on how to resume constitution writing is inextricably linked to government coalitions and electoral calculations. Indeed, the discussion between the parties since the assembly ended has been dominated by questions of whether, when and how the government will change. A broader constitutional crisis looms if the opposition leans on the largely ceremonial president to challenge the government. The political context is shifting; parties are trying out new agendas and alliances and new actors are emerging. Divisions are rife within the parties – the Maoists have already split – and contradictions run deep in the alliances.

Denying moderate identity-based claims makes the polarisation worse and risks stoking communal tensions, as does dismissing the fears of groups that feel they will lose out. Explaining the debate will clarify it, but resolve little. Parties need to present a roadmap with broad buy-in before either going to elections or bringing back the assembly. For this, they can build on the work already done. Between themselves, they need guarantees on power sharing. Elections now could help clarify the context, but they will in effect be a referendum on federalism and risks of violence are real. For once, issues matter in Nepali politics. Mainstream parties are best positioned to reflect the country’s ethnic complexity, especially as the balance of political and social power is such that no single party will capture the votes of an entire group.

Kathmandu/Brussels, 27 August 2012

Nepalese police and United Democratic Madhesi Front activists clash in Birgunj, south of Kathamndu, on 31 August 2015. AFP/Manish Paudel
Alert / Asia

Nepal Conflict Alert

Spiralling protests against a draft constitution have left 23 dead and hundreds injured in Nepal in two weeks. An over-militarised security reaction and inadequate political response from the centre threaten to fuel deep-seated ethnic, caste and regional rivalries less than a decade after the civil war’s end. The major parties should recognise the depth of discontent and the fundamental challenge this poses to the legitimacy of the proposed constitution. A hastily-passed document, weeks after mobilisation of security forces to counter citizens’ protests against it, is unlikely to be the social contract Nepal needs.

The constitution, nine years in the making, was envisioned as an instrument to address longstanding grievances of large parts of society, who argue that the old system marginalised them from state institutions and political authority, deprived them of a fair share of the benefits of development and discriminated against them. These groups include plains-based Madhesi, Tharu and smaller groups, Dalit caste groups in the hills and plains, hill ethnic Janajati (“indigenous nationality”) groups and women. Many have concluded that the 8 August draft does not adequately deliver on commitments to a federal system and inclusion.

The government and its opposition partners in the constitution deal say they are under pressure to end years of uncertainty by passing the draft quickly. They downplay the significance of the protests, arguing that not everyone in a democracy can be satisfied and that the constitution can be amended. The state response to the protests has been security-heavy and in some areas, the army has been mobilised to deal with civic unrest for the first time since the civil war.

Kathmandu circles underestimate the scale and intensity of disagreement and the complexity of the often-competing grievances and claims. There are high-voltage public debates over disadvantage and structural discrimination that feed social resentments and grievances. These deeply-felt issues will continue to find expression in agitation and opposition if the present moment is handled badly. A botched solution risks entrenching communal polarisation in society and radicalising groups that feel their concerns were not seriously considered.

Reconciling the expectations of all Nepalis was always going to be a challenge for the Constituent Assembly. The 2006 Comprehensive Peace Agreement between the then Maoist rebels and representatives of political parties, as well as the 2007 Interim Constitution, promised political reform and redress for past inequities. Numerous social groups based on caste, gender, ethnicity, and regional interests lobbied for their agendas. Often, movements turned violent to force the government to take them seriously. Since 2007, governments have signed over 40 agreements, often contradictory, with different groups.

The recent violence was mainly sparked by delineation of the six-, now seven-state federal structure proposed to replace 75 administrative districts. Tarai-based groups wanted to keep stretches of the southern Tarai plains together, including by changing the traditional north-south administrative divisions, which mixed plains, hills and mountains in administrative zones. In the hills, some Janajati groups want to keep areas traditionally considered homelands intact, though this is not a focus of protests. Other issues are also highly contentious though not explicitly part of the current demands: a proposed citizenship measure which makes it difficult for children with a single Nepali parent to gain citizenship with the same rights as those who receive citizenship by descent; and the proposed electoral system and standards for demarcating constituencies, which may not deliver better representation of the agitating population groups.

Madhesi communities, one of the country’s biggest population blocs and the largest group across the Tarai, and Tharu communities, many concentrated in the far-western Tarai, say the current system puts them at a demographic disadvantage politically. They anticipate gains under the new system but object to some parts of the plains being included in hill states. Traditionally hill-based communities, and the framers of the draft constitution, counter that migration continues from hills and mountains to the Tarai, forming mixed communities, and that hill community members have land or commercial ties to the disputed areas. Madhesi and Tharu groups believe the major parties want to renege on the letter and spirit of earlier commitments to political empowerment and reform.

Within the Constituent Assembly, which functions as the parliament, there is discontent. The governing coalition consists of the Nepali Congress (NC), the Communist Party of Nepal-Unified Marxist Leninist (UML) and the Madhesi Janadhikar Forum-Democratic (MJF-D); its opposition partners in the constitutional deal are the Unified Communist Party of Nepal-Maoist (UCPN-M). The MJF-D last week said it could no longer support the deal if Tharu concerns were not addressed. The NC and UML have forbidden their members from trying to amend the draft; 33 smaller parties have refused to be part of the process, and the oldest Madhesi party, Sadbhavana, resigned from the Constituent Assembly last month.

There are protests and agitation in much of the Tarai. Kailali district in the far west, parts of which Tharu groups and the hill-based Undivided Far West Movement want for their respective new states, had the worst violence last week. The major parties revised the federal model to add a seventh state in response to the latter’s demands. That added to the discontent of Tharu groups, considered among the most historically marginalised in Nepal, who said their grievances were ignored as they lacked close ties to Kathmandu power centres.

Since the protests began three weeks ago, at least fifteen people have been killed by police in various parts of the country. On 24 August, seven police and a child were killed in an apparent attack by protesters in Kailali’s Tikapur town. Kailali remains under a 24-hour curfew. Given restrictions on movement, it is difficult to verify reports of significant displacement of Tharu families fearing or following retaliatory violence. Birgunj city and areas in the central Tarai are tipping into serious violence, with nine people killed by police this week. The National Human Rights Commission has not officially investigated any of the deaths. The army has reportedly been mobilised at different times in Kailali, Dang, Parsa, Rautahat and Sarlahi districts. There are concerns about communally driven violence and about the state’s response. An indefinite banda (strike) across the Tarai is in its third week.

It is unlikely the discontent can be resolved by a deal between power-brokers in Kathmandu that does not address core issues. While some district-level political leaders and parties that represent Tharu and Madhesi groups in the Constituent Assembly have been involved in the protests or support them, the mobilisation and leadership comes largely from within local communities. Many of the protests do not involve huge numbers, but rely instead on better organisation and target the shutdown of specific infrastructure, such as government offices and stretches of the national East-West highway.

The government must act urgently to address tensions, reduce the risk of more violence and to restore confidence in the constitution-writing process. The enormous trust deficit between agitating groups and Kathmandu’s political leadership will worsen if the government and major parties persist with a heavily securitised response to fundamentally political protests, and if they and the media portray the protests as marginal or criminal. The government should also urgently form an independent commission to investigate the recent killings.

All protesting groups must denounce and guard against violence from within their ranks, and avoid threatening or extreme rhetoric. They must also offer realistic alternatives, not just reject Constituent Assembly proposals.

The major parties say they are open to amendments and willing to talk to any group that feels it has been excluded. The government in early August conducted a four-day exercise to obtain feedback on the draft, though there is a public perception it will ignore suggestions that do not fit the current draft’s form.

The timing, sequencing and design of talks will be challenging. It is essential the government does not insist on artificial deadlines or preconditions and is ready to discuss the status of past commitments. The agitating groups are wary of being forced into an accelerated timetable within the Constituent Assembly. The government anticipates speaking to each agitating front separately, but Tharu and Madhesi groups may seek a joint negotiation. Small adjustments to the proposed boundaries of states in the far west and east would significantly lower tensions but are strongly resisted by some leaders.

Tenor will matter as much as issues. If there are more deaths and if groups feel negotiations are not respectful or in good faith, this could jeopardise confidence in other contentious compromises on citizenship, the electoral process, the number and distribution of constituencies, the threshold for political parties, representation and inclusion.

The anger in the Tarai and among various social groups is real. If it is ignored or mishandled, the violence will grow. If the new constitution is truly to be one for all Nepalis rather than a starting gun for new forms of conflict, its framers must recognise that getting it done right is more important than getting it done fast.

Kathmandu/Brussels