Nepal is a tiny nation traumatized by its bloody past, uneasy present and uncertain future. Six prime ministers and two elections later, Nepal is nowhere near the end of the process of drafting its long-awaited Constitution due to profound political differences among its political class. As long as new constitution does not come into force, the ongoing political instability cannot be expected to end. On 22 January, 2015, Nepal has again failed to meet the deadline to frame the new constitution and to give the country stable political institutions. The agonizingly slow pace of political progress toward democratic governance has deepened public frustration.
As the constitution-making process is entering the most decisive phase, the rhetoric of the political parties is becoming more acrimonious and their behavior more unscrupulous. Nepal’s current constitutional situation is delicate and its feuding politicians must realize that time is not on their side. The protracted constitutional stalemate raises the risk of socio-political unrest in the impoverished buffer state wedged between India and China.
Constitutional drafting is difficult in any context, particularly in a system witnessing transition from authoritarian to democratic one. It is even more complicated to throw away the feudal influence and to establish democratic consciousness. A constitution that qualifies itself as democratic should be one not only in its provision but also in its language. Both have been rendered contentious in Nepal’s severely discordant political landscape. A history of deep misunderstandings and ideological differences make the process of creating mutual trust among Nepal’s political parties more strenuous, in a period where there are no fixed rules and the very institutions for dealing with conflicts are being created under circumstances of uncertainly.
Lack of consensus
The decade long brutal civil war between the Maoists and the government was brought to an end in 2006, bringing the Maoists into the Nepali political mainstream with the signing of the Comprehensive Peace Agreement. The Constituent Assembly elected in 2008 spent four years trying unsuccessfully to draft a Constitution. It was dissolved in 2012 without promulgating a new Constitution after it became deadlocked over the issue of a parliamentary or presidential system of government, and the division of the country into states based on ethnicity or geography. The second Constitutional Assembly was elected in 2013 that resulted in a radically diverse political landscape then that of 2008. The Maoists and identity-based regional parties suffered a resounding defeat whereas the Nepali Congress party and the Communist Party of Nepal (UML) became victorious. The marginalization of Maoists from the constitutional centre of attraction and corridors of power aroused the expectation of breaking with the status-quo. But it was not to be.
Framing a constitution through the Constitutional Assembly is a key component of the Comprehensive Peace Agreement. The peace process will bring to a close only with the adoption of the new constitution. Nepal is a multi-ethnic, multi-religious and multi-lingual country. The biggest challenge before the constitution drafters is to ensure the rights of women, downtrodden, ethnic minorities, as well as the marginalized communities. For example, the people from the hills have formed the core of Nepal’s ruling elite, but they will have to accommodate the Madhesis of the Terai who constitute almost half of the country’s population.
As a matter of constitutional theory, federalism makes perfect sense in a system premised on the desire to avoid suppression or tyranny. If all sovereign authority is placed in just one governmental unit, it may ultimately lead to dictatorial rule. Federalism tends to avoid this by not only reducing the possibility of a higher governmental level to control all aspects of its citizens’ lives but also providing the citizens the “safety valve of interstate mobility” in case of the attempts to impose oppressive rule by the lower governmental level. In Nepal, the consensus on this issue is yet to emerge. In the meantime, the halting process of constitution framing is taking a heavy toll on Nepali society. The difficult political equilibrium reached in 2008 seems to have been broken in the partisan constitutional debates, periodic stalemates and opportunistic alliances during last six years.
The current disagreements among political parties in Nepal’s Constituent Assembly revolve around the creation of new provinces, the new electoral and the judicial systems. The Maoists and its alliance of regional parties insist the creation of around a dozen states and name them after different ethnic communities that they claim would favour these historically marginalized groups. But the ruling alliance primarily composed of-Nepali Congress Party and Communist Party of Nepal (UML)-fears that Nepal cannot effectively fund that many administrative units, and feels that the “ethnic federalism” model is a threat to national unity. They prefer the number of states to be almost half of that demanded by the opposition.
The ruling alliance, led by the Nepali Congress, enjoys more than the requisite two-thirds parliamentary majority in the 601-member Constituent Assembly to approve a constitution without Maoist support. The latest deadlock in the Constituent Assembly, which also functions as Nepal’s Parliament, arose when the move by the ruling alliance to propose a vote on contentious issues in the draft constitution strongly infuriated the Maoists who have been demanding consensus instead. The Maoists’ insistence on promoting unanimous agreement on all issues has necessarily slowed up the drafting procedure and may further prove quite impracticable in an Assembly torn by bitter factional disputes. Even Indian Prime Minister Narendra Modi, during his visit to Nepal during the SAARC summit, has pushed for consensus: “My appeal is that Nepal’s constitution should represent every community. The constitution should not be made through numbers, but through consensus”. Nepali Prime Minister Sushil Koirala’s frustration is understandable as consensus has remained elusive.
The conflict-resolution process in Nepal has challenged those primers that prescribe one-size-fit-all solutions for very different situations. But the process of constitution-drafting in Nepal is not the saga of failure and frustration only. It should not be forgotten that after the end of the conflict in 2006, Nepal has seen two successful elections, each followed by peaceful transfers of power. The monarchy was overthrown in 2008. The country has not returned to conflict despite crucial challenge to the peace process. It is felt by seasoned observers that the disputes over the judicial and electoral system are amenable to resolution with the spirit of compromise. But the issue of federalism on which the Maoists-led opposition has taken hard-line postures, will decide the fate of the new constitution. It must, however, be recognized that the problem relating with federalism is of political nature, and not of legal one. It has also been reported in the media that both India and China have insisted to Nepal to adopt a federal system having a lesser number of provinces as well as a strong central government. Thus, in order to consolidate the gains achieved so far, Nepali politicians bear enormous responsibility to chart out political solutions for political problems.
Because of its geo-political situation, friendly relations with Nepal have always been India’s priority. Facts bear testimony to Indo-Nepal linkages. Nepal, which shares an open border with India, is surrounded by the latter from three sides. 65% of Nepali trade is done with India that also accounts for almost half of the total FDI in Nepal. India continues to be the biggest destination for Nepali migrants. To reenergize and re-strengthen India’s historical, cultural and economic ties with Nepal, Modi chose Nepal as the second country after Bhutan for his foreign visit.
However, the prolonged period of uncertainty and confusion is not in India’s interests. India cannot remain unaffected by domestic turbulence in Nepal largely on account of the open border between the two countries, and Nepal’s geographical proximity with China. The links between the Maoists in Nepal and India are well known. Bordering districts in Uttarakhand and Uttar Pradesh have previously witnessed large-scale Nepali migration in the wake of insurgency in Nepal, and any fresh outbreak of violent unrest or insurgency is likely to adversely affect the security situation in these bordering districts.
Moreover, Maoists, when they were in power, did not hide their eagerness to lessen Nepal’s dependence on India. They made concerted attempts to court China that has always desired to become an influential player from just a distant observer of Nepal’s internal political matters. China is currently funding significant energy projects in Nepal. During his recent visit to Nepal, Chinese Foreign Minister Wang Yi has also promised Nepal attractive financial grants and investments. Wang’s praise of “Nepal’s unwavering effort in upholding its sovereignty, independence, territorial integrity” is indicative of China’s growing intent of being treated on par with India. Prime Minister Koirala has also sent the invitation to the Chinese President Xi Jinping and Premier Li Keqiang to visit Nepal to mark 60 years of diplomatic relations, established in 1955, between Nepal and China.
While appearing to be non-dictatorial on Nepal’s constitutional process and maintaining secular stance, India should be politically invested in the success of Nepal’s transition to truly constitutional democracy. A consensus has to emerge in Nepal.