Nepal’s Constitution (I): Evolution Not Revolution
Nepal’s Constitution (I): Evolution Not Revolution
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  1. Executive Summary
Report 233 / Asia 4 minutes

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

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