by Mara Malagodi

Nepali legislators are currently striving to promulgate the country’s seventh constitution and conclude the peace process that began in 2006 after the ten-year long Maoist People’s War. By 2001 a new constitution drafted ‘by the people’s elected representatives’ had become the Maoists’ key demand and the precondition to bring the insurgents to the negotiating table. Since 2006, radical constitutional change was deemed as the primary vehicle for state restructuring and the pillar of the peace process’ mantra of ‘nayā Nepāl banāune’ (building new Nepal). The new constitution was expected to secure by institutional means the inclusion of the country’s many marginalized groups (janajati, dalit, Madhesi, women, LGBTI, religious minorities) and further the process of democratization of the Nepali state. Almost a decade has passed, two Constituent Assemblies have been elected, and countless protests have taken place over the contents of the new dispensation, but little progress has been so far achieved in terms of significant institutional change. While the promulgation of Nepal’s new constitution seems now to be in sight, the draft tabled for approval in the Constituent Assembly on 23 August 2015 has drawn sharp criticism over many of its features, which have been deemed undemocratic and exclusionary, and has engendered violent protests with increasing numbers of casualties.

The devastating earthquakes that hit Nepal in April and May 2015 briefly obfuscated the political tensions over federal restructuring and institutional recognition that had brought the first Constituent Assembly (CA1) to collapse in May 2012 and the constitution drafting process in the second Assembly (CA2) to a standstill. Nepal’s 601-member CA1 was elected in April 2008 as part of the Comprehensive Peace Agreement of 21 November 2006 between the Nepal Government and the Communist Party of Nepal (Maoist) for a term of two years. Notwithstanding four extensions, the political fragmentation within the Assembly (where no parties commanded a majority) and bitter inter- and intra-party strife eventually led to the dissolution of the CA1 in May 2012 without the promulgation of the new Constitution. The main stumbling blocks in the negotiations over the new constitution were Nepal’s federal restructuring and form of government to be adopted. On 19 November 2013, after over a year with no legislature in place, the CA2 was elected bringing a relative majority to the centrist parties (Nepali Congress and UML). Inclusionary reforms progressively fell off the political agenda of the government and Nepal’s climate of political stalemate led to what a number of commentators have described as ‘counter-revolution by stealth’.

In the wake of the 2015 earthquakes, Nepal’s political elites, however, vowed to ‘fast track’ the drafting of the new document and finally complete the peace process. On 8 June, the main four parties (Nepali Congress, UML, Maoists, and Madhesi Forum-L) reached a political settlement known as the 16 Point Agreement, which was to form the basis of the new constitution. Significantly, the negotiations included only four of the thirty-one parties represented in the Assembly and made little effort to include representation from the marginalised groups. The Agreement featured a parliamentary form of government with a mixed electoral system and a separate Constitutional Court, but crucially sought to postpone the naming and demarcation of the federal units until the promulgation of the new constitution and the elections of the central and provincial legislatures. The postponement of the long-awaited process of federal restructuring immediately sparked protests across the country. Federal restructuring had come to represent the promise of inclusion for the marginalised groups. As a result, petitions were filed in the Supreme Court to have the Agreement declared violative of the currently in force 2007 Interim Constitution. In an unprecedented move, on 19 June, a single bench of the Supreme Court issued an Interim Order against the implementation of the Agreement’s postponement of federal restructuring. The apex Court arrived at its decision on the basis of Article 138(3) of the Interim Constitution, which mandates that ‘the final decision relating to the structure of the state and federal system shall be made by the Constituent Assembly’.

Politicians accused the Court of overreaching and the Assembly’s Constitution Drafting Committee (CDC) pressed on with the preparation of the draft on the basis of the 16 Point Agreement defying the Supreme Court’s order. In late June, a copy of the draft was leaked to Hindustan Times journalist Prashant Jha, who published a razor sharp critique of the document, while Supreme Court lawyer Dipendra Jha furthered the criticism in his ten-point analysis. On 30 June, CDC Chairman K.P. Sitaula submitted the draft constitution to the Assembly for the House to begin deliberations. Protesters took to the streets and further denunciation of the document emanated from civil society. Eminent journalist Kanak Mani Dixit described it as ‘sub-optimal’. A Kathmandu Post editorial, in line with the analysis put forward many times by prominent writer C.K. Lal, depicted the draft as an instrument to further consolidate the old power structure for instance through the attempt to remove the inclusionary provisions of the Interim Constitution. Women activists denounced the patriarchal nature of the draft, while janajati, dalit, and Madhesi activists condemned its exclusionary clauses. Seira Tamang of Martin Chautari pointedly commented: ‘the now officially public draft constitution has confirmed the fears of many. It has veered from the sentiments of the 2006 Jana Andolan and the 2007 Madhes Movement, retracted from the commitments of the Interim Constitution (2007) and largely written-over the progressive drafts produced by the most-representative elected body in Nepal’s history—the first Constituent Assembly (2008-2012)’.

Protests grew increasingly violent and the security forces’ response heavy handed, especially in the Terai, where the demands for federalism and equal citizenship have been historically the strongest. In the meantime, the Assembly opted for a fast-track procedure to pass the new constitution, allowing for a very brief period of public consultation over the draft. Amidst mounting tensions, on 8 August, the political leaders relented and inked a six-province deal on federalism. Tharu political leader Rukmini Chaudhary pointedly commented on the deal: ‘Accepting the six-state federal model is suicidal for the indigenous […] we demanded two states in the Terai: Madesh and Tharuhat. There is an incomplete Madhesh, and no Tharuhat. We said we don’t want a North-South federal model that puts the mountains and plains in the same state, but that’s exactly what they have given us. Indigenous groups have been cheated. Rai and Limbu homelands have been lumped together as in one state. Magar and Gurung homelands are also lumped together, as have Tamang and Newar homelands. There is Pahadi Brahmin-Chhetri dominance in each state’.

As protests intensified, on 21 August the Nepali Congress, UML, and Maoists agreed on a new seven-province federal deal (essentially carving out Province 7 out of Province 6 and maintaining the controversial longitudinal division of the country), while the Madhesi Forum-L did not support the scheme. On 23 August, the draft constitution (with the seven-province model) was tabled in the Constituent Assembly for approval by the House as the MPs representing the marginalized groups walked out in protest. Violent demonstrations and communal violence erupted across the Terai, leading to the death of security forces and protestors in Kailali, the imposition of a curfew, and the deployment of the Nepal Army.

It is now high time for political leaders in Kathmandu to rethink the problematic features of the draft constitution: federal arrangements (a very weak form of federalism and the controversial demarcation of the units); the removal of the adjective ‘secular’ from the Preamble (vis-à-vis the ongoing attempts to remove all references to secularism from the document and even to reinstate the Hindu Kingdom provision); the highly discriminatory citizenship provisions under which citizenship cannot be passed by Nepali mothers alone; a number of restrictions on fundamental rights; the ongoing exclusions of dalits, janajati, Madhesi, women, LGBTI, religious minorities; and many others.

The Nepali constitutional experience exemplifies the complexity of constitution making endeavours and highlights the crucial importance of the combination of an inclusive political process with far-sighted institutional design. It is to be hoped that Nepali political leaders will promulgate a legitimate and enduring document in which all Nepalis can feel included. The consequences of doing otherwise would be catastrophic at this point of the country’s history.

(Dr. Mara Malagodi is a Lecturer in Law at City Law School, City University, London. She is the author of Constitutional Nationalism and Legal Exclusion – Equality, Identity Politics, and Democracy in Nepal [OUP 2013])

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