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.
