At the Crossroads of a Constitutional Crisis


Why can’t Nepal write a constitution? Thomas Bell finds the answer

The foundational document of Nepal’s seemingly intractable peace process was signed under Indian tutelage, between the older parliamentary parties and the then Maoist rebels, in New Delhi in November 2005 – now almost ten years ago. Known as the Twelve Point Understanding, it formed the basis of an alliance between its signatories against their common enemy, the king – who was then ruling in a despotic manner modelled on the dictatorship of his father.

Within a few months, the king was defeated by a joint street movement, which was interpreted as giving a popular mandate to create a ‘new Nepal’. The parliamentary parties and the Maoists soon signed a Comprehensive Peace Agreement (2006). This formally ended a ten-year Maoist insurgency, which had sought to topple a hierarchical and iniquitous Nepali state, and set out a process to establish a permanent settlement between the older parties and the Maoists. It was based on the logic of the earlier Understanding: the Maoists would demilitarise and accept a multi-party electoral system; in return for which the state would be reformed to address historic grievances. The process was predicated on the principle that the parties would reach consensus to institutionalise change, and the new charter would be promulgated by an elected Constituent Assembly (CA).

Many other agreements, between the parties or between various agitating groups and the state, have since been added – many of them reiterating the parties’ commitment to previous deals. That this was repeatedly felt necessary is indicative of a very low level of trust. The most important of these agreements was with Madhesi parties in 2007, giving an explicit commitment to federalism. The Madhesi parties seek to represent communities living near the border with India: an occasionally volatile region that feels itself – with good reason – to be a victim of prejudice and discrimination at the hands of the government in the hills. The Interim Constitution (2007) sought to put a seal on the various deals.

So, by the time of the first election to a Constituent Assembly (CA) in 2008, all of the major parties were signed up to a framework that included basic common agendas: democratic government, republicanism, secularism, and federalism. And these agendas – diverging only in matters of design rather than principle – were propounded in all of the major parties’ manifestoes, for both the 2008 and 2013 elections. Yet unity of purpose lasted only until the parties had abolished their common opponent, the monarchy.

Ultra-Defensive Tactics

The Maoists emerged from the 2008 CA election as the largest party, severely alarming the ‘establishment’ parties in Nepal and the government of India, which had backed the process since its inception. Fears that the Maoists, once in government, would abandon their newly discovered commitment to democracy and establish a communist dictatorship were understandable, but overblown. This was ultimately made clear by the fact that the former rebels couldn’t so much implement their (essentially centrist) development programme during a short-lived coalition government, and, after their administration was toppled, were kept out of power for over two years, despite being the largest party.

Naturally, the establishment parties - the Nepali Congress (NC) and the CPN-UML did not support the Maoists’ constitutional proposals: there were differences, for example, over whether to have a parliamentary or a presidential system of government. But while they denounced the Maoists’ proposals as threatening communist ‘state capture’, in the early years of the process they had almost no alternative vision of their own to accomplish the changes to which they were also purportedly committed.

The agenda for ‘identity based’ federalism has become the central dispute of the constitutional process, but it was poorly developed and has often been misleadingly represented. As it currently stands, the demand is for federal provinces drawn to partly reflect various ethnic groups’ traditional ‘homelands’, but in which all citizens would have equal rights. As the fear of Maoist ‘state capture’ receded, the NC and the UML increasingly resorted to claims that such Maoist and Madhesi proposals would lead to ethnic conflict and national disintegration. However, opponents of identity-based federalism had little to say about how the enduring marginalisation of these communities comprising around 70 percent of the population could alternatively be addressed.

Although they reject the term, the NC and UML, and their relatively elite social constituencies, are therefore often and somewhat justifiably described as status-quo-ist. The reform agendas of the peace process came at the former rebels’ instigation, not theirs. These parties and their supporters are frankly nostalgic for the previous constitutional settlement, of 1990, which was already sufficient for their own advancement. They frequently express the wish to return to the situation as it was before the Maoist and Madhesi movements came along.

The Maoists, for their part, have been ‘mainstreamed’. Their former fighters, who remained peacefully in cantonments for many years after 2006, were by 2013 all either fully demobilised or, in the case of 1,400 of them, integrated into the national army. The former revolutionaries have contested two national elections (winning the first and losing the second). The party has split: the more radical faction seems to be declining into obscurity, while the parent party (now known as the UCPN-M) is increasingly indistinguishable, in the eyes of much of the public, from the older parties it once fought to replace.

The former rebels are guilty of many political misjudgements, but their misdeeds and disappointments since coming ‘over-ground’ (whether in the matter of public corruption, intermittent thuggery, or more broadly ‘failing to bring change’) are hardly divergent from the prevailing norms of Nepali party politics. Reassuringly, despite fears over the Maoists’ alleged authoritarianism, their lapses in democratic practice have been to their own disadvantage rather than their opponents. Madhesi leaders have also lost the confidence of their base in recent years, although there is no reason to believe (as some hope) that the political sentiments they represented have gone away.

Failure at Two Levels

The failure – almost a decade after the process began – to institutionalise reform through a new constitution may be seen on two levels. Firstly, there is the unwillingness or inability of leaders to work in a cooperative and constructive (in the language of the peace agreements, a ‘consensual’) manner. Thus, seven separate governments, showing no particular consistency in parties’ ideological alignment, have been raised and toppled in the course of the peace process to date. This reflects leaders’ struggle for short-term victory over opponents, and their desperation for the power that accrues from even temporary access to state resources. Sometimes described as ‘political immaturity’, this elite political dynamic is in fact a deeply entrenched and profound characteristic of Nepali politics; which has shaped, in evolving form, all two and a half centuries of the country’s modern history.

Secondly, there is no less profound and consuming struggle over Nepali nationalism. Many people, not least members of traditionally dominant Pahadi high caste communities, see the demand for identity-based federalism, and the more general case for social inclusion and proportional representation, as threatening to their sense of ‘Nepaliness’, the traditional order of the Nepali state, and also to their own (often privileged) access to resources. The Maoists, Madhesis and allied groups see this demand for ‘inclusion’ as a means to make national identity more comprehensive, and the dominant group’s anxiety as evidence of their desire to perpetuate discrimination.

In short, the differences between the parties today– over which individuals and parties will be in power, and the access of different communities to state services and representation – are a refinement of the issues that first occasioned the conflict twenty years ago, and sometimes seem little closer to resolution.

The Maoists and Madhesis enjoyed the dominant position in the first CA, but its mandate expired in 2012 without completing the constitution. A second CA election, successfully conducted thanks to strong Indian backing, brought victory to the NC and UML, which (with a minor coalition ally) now control the two-thirds’ majority needed to promulgate a constitution without accommodating the opposition’s agenda. They have, therefore, adopted a maximalist position, appearing to believe that the newer forces can be permanently defeated, and the 1990 settlement restored. They are currently threatening to pass a constitution by majority vote in the CA which, it appears, may not go so far as either the 2007 Interim Constitution or their own recent election manifestos in delivering the kind of reforms the process was created to deliver. The options they have prepared for voting have not yet been revealed; and the ruling parties’ rhetoric and actions give the opposition little reason to trust their intentions.

A Little Bit of History Repeating

This manner of promulgating the constitution by majority vote is argued to be democratic, but it also amounts to abandoning past peace process agreements. Further, and more importantly, it is doubtful whether it will succeed in establishing peace, stability and progress in Nepal. Repeatedly, in recent decades, popular demands for democratisation and reform have forced a change, only for establishment forces to successfully limit or recoup their losses – thus setting the scene for the next uprising. The ruling parties are currently emboldened by the fact that the Maoists and Madhesis are weak. Yet political fortunes are liable to be reversed, again, sooner or later.

The next steps are unpredictable. Numerous possibilities exist. The government is already confronting protests in Madhesi dominated border areas with high-handed police tactics. Most observers agree that there seems little danger of a major conflagration for now, but such occurrences are episodic in Nepal, and a constitution enforced at the tip of a police laathi would probably be the object of future resistance.

The most concerning danger is that the chance to nip communal grievances in the bud at this stage will be missed – when demands are still relatively modest, and the wider population has not yet become deeply politically divided along identity lines – despite the polarising tactics of political leaders.

Chronic instability in Nepal threatens to remain an enduring security concern for New Delhi, and an obstacle to progress in, for example, successfully implementing recent hydro-power agreements for years to come.

However dismal as the situation may appear, the outline of a compromise is well known, and a deal has been close more than once – most recently in January. Differences over the form of government (a Westminster-style system is the likely outcome), the electoral system (it will be a mix of FPTP and PR), and judiciary (there might be a special constitutional court for the first ten years), seem broadly settled. Even on federalism, differences have at times narrowed to the fate of just 5 out of 75 districts, and there are creative proposals to overcome this too.

The real obstacle is the ambition of individual leaders. Once again, negotiating the formation of the next government has intruded into constitution writing. The recent landslide electoral victory of the ‘establishment’ parties has led them to entertain fantasies of defeating, once and for all, their upstart partners in peace. The dispirited opposition has begun to boycott the process, and resorted to threats that they will impose their own constitution ‘from the street’ – threats that seem barely credible given their current low public standing.

India’s Decisive Role

India has played a decisive role in guaranteeing the peace process at every point. The progress has been made – from the 2005 Twelve Point Understanding to the successful conduct of the 2013 election. Prime Minister Modi has made his position clear - only a compromise acceptable to all major parties can be a basis for peace and stability. He has inevitably been accused of meddling in Nepali affairs by the same actors who were very happy to accept Indian influence when the Maoists appeared to have the upper hand in the first CA.

To see the process to a viable conclusion, India’s active support for a cross party agreement once again seems vital. There will be no happy outcome until all major leaders feel that their own interests are best secured by completing such a deal. Then, finally, they need to be able to present it to the country as a unifying common achievement, which contains political gains and fundamental protections for all of their constituents.

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Diplomatist Magazine was launched in October of 1996 as the signature magazine of L.B. Associates (Pvt) Ltd, a contract publishing house based in Noida, a satellite town of New Delhi, India, the National Capital.