Tuesday, June 9, 2015
Prashant Jha - Nepal constitution: Breakthrough or abdication of responsibility?
Sixty-four years after it was first promised that a Constituent Assembly would draft Nepal’s constitution; seven years after the election to a first CA, which was followed by an election to a second CA a year a half ago; and after innumerable movements and a civil war which killed 16,000 people, Nepal’s political parties have finally come to an agreement on new constitution to be promulgated by a CA.
The contours of the deal are now in public domain. Nepal will have a Federal Democratic Republican constitution. It will have a parliamentary system, with a PM elected by the majority of lawmakers in the lower house, a ceremonial president elected by parliament and provincial assemblies much like India. At the centre, it will have a bicameral legislature – elections to the lower house will be on the basis of a mixed electoral system, whereby 60% of the 275 seats are elected directly through the First Past the Post system while 40% are elected through Proportional Representation. In the upper house of 45 members, states will have equal representation, with five members nominated by the central government. The judiciary would be independent, and there would be a Constitutional Court for ten years to adjudicate disputes between the centre and the states, between states, and other levels of government.
On the most contentious of issues, federalism, Nepal’s three big parties (Nepali Congress, Communist Party of Nepal (Unified Marxist Leninist) and the Maoists) and one party of the plains (Madhesi Janaadhikar Forum-Democratic) have decided Nepal will have eight provinces. But the demarcation of the boundaries has been left to a commission of experts to be formed in the future, while the names of provinces would be determined by future provincial assemblies.
This is a political milestone in Nepal’s history. But the cheer and jubilation is tempered because the constitutional deal that has been struck is incomplete. And that has left observers wondering whether this is indeed a breakthrough or represents an abdication of political responsibility.
Will it finally create systemic stability and a just, inclusive, federal democratic republican Nepal or will it only sow the seeds for more turbulence? And it is this vacillation between the hope that the constitutional moment ought to have offered versus the disillusionment it has triggered among many that perhaps best represents the mixed response to Monday’s deal.
Battles of the Text: But first the context. After a devastating civil war, Nepal’s democratic political parties and the then underground armed rebels, Communist Party of Nepal (Maoist), came together to oust an autocratic monarchy in 2005-06. They also agreed, through a 12 point understanding signed in New Delhi with the Government of India’s facilitation, to have elections to a new CA, which would draft the country’s constitution.
An internationally monitored peace process commenced; an interim constitution was promulgated; an agitation erupted in the southern plains bordering India by social groups demanding federalism; the first Constituent Assembly elections were held in 2008 and saw a surprise Maoist victory but polarisation ensued between Maoist and non-Maoist political forces; after years of negotiations, former Maoist combatants were partly integrated and mostly sent back home with cash; deep differences on federalism led to the collapse of the first CA; another election was held in 2013, when the balance of power changed and older political parties led by Nepali Congress won; parties, yet again, failed to meet their self imposed deadline to draft a constitution by January 2015. And through these two and a half decades, Nepal had over twenty governments, in a sign of the enormous political turbulence in the country.
The constitution, however, was supposed to create systemic stability. It was to mark the culmination of the peace process, give an opportunity to Nepal’s diverse social groups to draft their own social contract and have a shared sense of belonging. And that is why the CA became a site for the contestation of ideas, visions for the future political order and the shape of the state, ranging from the form of government to the transition from a unitary to a federal state and the electoral system.
(A Primer - Nepal’s recent political history and constitutional battles)
The fundamental difference between the parties – the ruling Nepali Congress and Communist Party of Nepal (Unified Marxist Leninist) on one hand, and the Maoists, Madhesi parties of the plains, and ethnic groups of the hills on the other – was on the nature of federalism. What would be the basis for federal restructuring? Would it prioritise issues of identity which would cede more political power to erstwhile excluded groups as argued by the opposition alliance, or would it prioritise principles like administrative viability and ‘national integration’ which may have kept the power concentrated with segments of a few powerful communities, as suggested by the older forces?
What would be the number of provinces, their names, and their powers? In particular, how many provinces would the strategic region of the Tarai, bordering India, have? Would it have two provinces as argued by Madhesi parties or would there be integration between hills and plains on a north-south basis, as older parties wanted?
It was the failure to reach an agreement on precisely these issues that led to the collapse of the first CA and blocked progress in the second CA. The NC-UML had proposed seven provinces but this was unacceptable to the opposition alliance.
The Quake Strikes: And it was in this backdrop of a political deadlock that Nepal was hit by a devastating earthquake on April 25. Over 8000 people have died; more than half a million houses lie destroyed; government infrastructure is damaged badly; 8 million people have been affected in some form or the other according to UN figures; and citizens in Nepal’s mid-hills and Kathmandu valley are still reeling from the trauma and aftershocks. Monsoon is approaching and the need for temporary shelter is most acute even as longer term reconstruction is being planned by relevant agencies.
Natural disasters often have political consequences. In Aceh, after the tsunami, it led to a form of peace settlement; in other contexts, including Sri Lanka, the same tsunami may have increased the rift between the government and the Tiger rebels who were then locked in a peace agreement and ended up resuming conflict soon after.
In Nepal’s case, the earthquake changed national priorities. There was an increasing sense that the political paralysis had affected the state’s capacity to respond effectively. The political parties almost went missing in the first few days of the quake, severely eroding their credibility and making them an object of ridicule at a time when citizens and volunteer groups had taken the leadership themselves.
The parties knew they needed to do something to salvage their credibility. The Nepal Army, which exercises significant political influence indirectly and is skeptical of federalism, gained enormously in popularity as it was one of the few state institutions seen as reaching out. A narrative was also built up, which underplayed differences based on identity and emphasised the common bonds that come with being Nepali.
The opposition, particularly the Maoist party led by Prachanda, was increasingly fatigued with the agenda of federalism and felt it was yielding limited dividends; Prachanda is also understood to have told his colleagues and allies that if they did not settle the constitutional question immediately, Nepal may not be able to preserve the progressive political gains of the last decade – republicanism, secularism, and the in principle agreement on federalism – at all.
There was a feeling that the Maoist party no longer had the machinery to wage a protest; more importantly, there was no public appetite, after the trauma of the quake, to wage a movement on political issues. The quake had indirectly strengthened the Kathmandu establishment, even though there was widespread evidence to believe that the central government had been dysfunctional and responded weakly whereas local governments were far better and more rooted. But given the adverse balance of power, Maoists stepped back from their insistence on a specific deal on federalism. The ‘something is better than nothing’ approach dominated the Maoist mood.
But it was not just an understanding of the current realities, but the shared interest of principal Nepali leaders that led to the deal. PM Sushil Koirala made it clear that he would stay on till the constitution was not finalised – this was convenient, for if the constitution was not done, he would keep his job and if it was done, he would claim it as his legacy, which would boost his chances in an upcoming party convention.
Communist Party of Nepal (Unified Marxist Leninist) chairperson KP Oli, among the most reluctant federalists, has consistently pushed for a constitution without a specific federal design – he knew as soon as a constitution would be done, his own prospect of becoming the PM would rise up, for this was the quid pro quo for supporting the NC government last year.
In recent weeks, with Maoists accepting Oli’s terms and increasing Prachanda-Oli bonhomie, he may well become the PM of an even broader based government. For Prachanda, a compromise was the best way to access power structure once again; there are hidden skeletons in his closet (including corruption cases) which may see a quiet burial once in government.
The other influential Maoist leader, former PM Baburam Bhattarai, is understood to be keenly interested in a role in an empowered reconstruction authority – a unity government and Maoist engagement with the party in power would enhance his prospects.
And the sole Tarai leader who has signed on to the deal, Bijay Gachhedar, comes from a political tradition which prioritises being in government at any moment as a far more effective way of consolidating and expanding power than catering to social constituencies.
It was this set of factors – the shared interest of the political elites to restore lost legitimacy; the ruling alliance getting to settle the constitution on its terms; Maoist fatigue with federalism, diminished morale and desperation to access state power; the convergence in the ambitions of key leaders; and the opportunity, or some may suggest, pretext, provided by the earthquake to ‘fast-track’ a constitution – that has led to Monday’s deal.
Simmering Resentment: But there are already signs that the new constitution will be a deeply contested document. It will alienate key social segments and political forces. And in the process of papering over one problem, the political elites may have even created another, deeper problem in the medium-term.
The opposition alliance of 30 parties – many of whom are admittedly fringe outfits with little strength – has now collapsed. Only Maoists and Gachhedar have signed up to the deal, while other key Madhesi political outfits have threatened to walk out of the CA itself. Ethnic outfits outside the CA, led by influential civil society figures, have also opposed the deal. And there is an increasing refrain that the earthquake has been used as an opportunity by those who have exercised power in Nepal for long to entrench it further.
It does not help that all three top parties are led by hill upper caste men – in sharp contrast to the astonishing diversity of the country. There is skepticism for a range of reasons.
One, the decision on the number of provinces without determining the demarcation has left observers befuddled. Is this not putting the cart before the horse, for how is it possible to know the number of states before knowing the basis and what the broad borders would look like? This decision is seen with great suspicion rather than a step forward.
Second, the interim constitution itself had an in principle commitment to federalism. The primary task of the CA was to formalise it, and provide a specific design. And by not doing so, there is a sense that the political leadership has abdicated its responsibility and the CA has just institutionalised the interim constitution.
This is linked to a third issue. If members of two assemblies – after seven years – did not come up with a design, where is the guarantee that a technocratic commission in the future would do so? Nepal does not have a history of autonomous institutions. The commission will have members nominated by political parties; the members will look up to the parties and toe the line; if this has to happen, then it reinforces the fact that decision on a federal design is a fundamentally political question, which is why the CA should have addressed it in the first place.
Four, like in the rest of the region, committees and commissions are often seen as a way to postpone, dilute, and do away with an issue in Nepal. Timelines are rarely met. And federal forces feel that this will be a ruse to keep the issue hanging, consolidate power and subvert federalism altogether.
All of this may have been an academic exercise but for the fact that federalism is a deeply political, even emotive issue. It is seen as a route to tackle discriminatory structures and ensure political inclusion. In the Tarai, in particular, the message that the constitution has not addressed aspirations for self rule may radicalise the sentiment further.
There is a fringe separatist strand in the plains already, and by antagonising the Madhesi moderates, the Nepali establishment may be making the classic mistake that many governments in south Asia have repeated – of dismissing genuine aspirations only to see demands escalate even further.
If those forces who signed up to Monday’s deal want to genuinely provide a durable, broad-based constitution, they must revise their pact. Accommodating dissenting views, enunciating clearer principles on which federal demarcation will happen, and using the next few weeks to reach a consensus on broad borders before the constitution is drafted will help douse fires.
Nepal needs a constitution to focus on national reconstruction. But if this constitution only exacerbates conflict in the medium term, it will only open up another front and distract from the task of building back better. The country can do without more tragedies and conflicts. But for that, Nepal’s political leaders have to step back and reach out to the restless, disillusioned and angry political elements soon.