Nepali Constitution: Obstacles and Developments

Nepali Constitution: Obstacles and Developments

Q. “The Nepalese Constitution is work in progress, yet it faces insurmountable obstacles.” Discuss this in light of the developments in the formation of the Nepalese Constitution.

A. Obstacles in the Formation of the Nepalese Constitution

1. Lack of Consensus

• Constituent Assembly expected to promulgate fresh Constitution on January 22nd 2015
• Political parties were unable to resolve differences for completing the task

2. Successive Failures to Deliver

• Nation's transition from a monarchy to a republic has turned into political storm
• 1990: Nation made the transition from authoritarian monarchic rule to a constitutional monarchy
• 2006: Decade long Maoist insurgency ends
• 2008: Formation of Interim Government
• Maoists emerge as largest party in April 2008 elections yet Constituent Assembly formed by the Interim Constitution in 2007 has failed to meet 2012 deadline
• Assembly was dissolved; fresh elections were called
• Second Constituent Assembly also failed to draft the Constitution in 2014

3. Rivalry and Squabbles Leading to Political Dysfunction

• Coalition of Nepali Congress and Unified Marxist-Leninist Party had two-thirds majority in the Assembly
• Poor performance of Maoist Party in second round of elections. Partnered with the Madheshi Morcha, southern regional coalition
• Strong rivalry between the 2 factions

4. Contentious Issue of Federalism - One of the most important issues obstructing the Constituent Assembly

5. Diverse Nation - Issues of Identity and Equality

6. Possibility of Unrest following a decade of civil war

• Maoist rebels scripted an insurgency for overthrowing monarchic rule and installing a new democratic republic
• Opposition players known for their hard-line postures
• Maoist leader Prachanda demanded views to be taken into account
• Alliance of 30 parties indicate street protests and strikes are on the way if so called voting procedure to end disputes followed

7. Disagreement Regarding Key Issues

• Number and names of proposed states
• Forms of governance
• Electoral and judicial systems

8. Repeated Deadlines Missed

9. Issue of Governance and powers to President, PM

10. Questions Regarding Type of Electoral System - Direct/First Past the Post, Proportional, Mix of Both

11. Contention on Nature of Judicial System - SC or constitutional court

12. Bid to Restore Nepal To Status of Hindu State stronger with RPP pitiching for Hindu state

13. Proposal Committe Backed By Majority Unacceptable to Opposition want it consensus driven

• Committee announced by Nembang would list issues with disagreements and vote in assembly to decide
• Ruling coalition makes up more than 2/3rd of the 605 member Constituent Assembly and their own proposals can be approved: this creates deadlock

14. Different Visions of Nepalese Nationalism - Struggle between replacement and preservation of national identity

15. Political Polarisation between Sections of Public

16. Identity Politics

• Sensitive and potentially incendiary identity politics
• Origin of 2006 constitution composition lies in popular street movement for New Nepal
• Fightback from elite against opposition at the heart of identity politics
• Demand for federalism from historically marginalised sections of society
• Quest for “homelands” of groups
• Risk of disrupting social harmony and risking ethnic conflict

17. Inclusive State Disputed

• Measures such as proportional voting system promotes a more inclusive state opposed
• Opponents offer less alternatives to political exclusion and discrimination
• Divisive ethnic politics and national unity

18. Economic Viability with upper caste Model Not Acceptable

19. Borrowing from Others - not original

• Taking constitutional concepts from others like :

- Affirmative action in the US
- Regional assemblies and Welsh language education of the UK
- Quota system and identity based federalism from India

20. Opposition From Traditional Nationalists against naming federal states after different ethnic groups

21. Politicians Not Really Interested in Change,; maintaing status quo

22. New Demands, Future Confrontations – compromise unacceptable to parties

23. Issue of State Restructuring

• Ruling NC not in favour of more than 6 to 7 states associated with:

- Geography, Economy Viability, Culture

• UCNP wants more than this number; Wants states to be based on ethnicity

24. Dispute over Law Enactment - Question of whether to give law restrospective effect for the persecution of war crimes

B. Developments

I. Major Milestones

a. Signing of CPA or Comprehensive Peace Accord in 2006; End to decade long violence commencing in 1996:

• 23 point agreement agreed to by Nepalese political parties
• Interim constitution declaring Nepal to be a federal democratic republic
• PM should conduct duties of Head of State

b. Elections for Constituent Assembly in 2007: Presence of International Observers

c. Enactment of interim constitution in 2007

d. Madhesis and Janjatis Protest Against 23 Point Agreement

e. CPN(M) Forms Interim Government (2008)

f. Formation of second constituent assembly in 2013

II. Recent Developments:

1. Constituent Assembly Announces Formation of Proposal Commitee to prepare questionnaire on disputed matters

2. Nepal Criticised External Influence; China appreciated for neutrality

3. Indian and international ambassadors criticised for initating delays in proceedings of the CA, as per media reports

4. All Round Consensus Not Possible; will try maximum acceptability - Khanal

5. UN says - • Ruling parties require more than 2/3rd majority in the CA to pass provisions in fresh Constitution

6. Constitution Must Enjoy Support

• 2006 peace agreement: New Constitution essential for ending Maoist insurgency
• Closed door consultations convened on other topics as well
• Dialogue to be continued in spirit of “flexibility and urgency”

Conclusion

Regarding Obstacles

• Nepal's new constitution faces many hurdles but they are not unsurmountable.
• Nepalese constitution - a tough proposition. Political differences at the root - key to its eventual resolution.

Regarding Developments

• Despite protests CA chairman Subhas Nembang formed the 73 member Questionnaire committee to prepare for voting in the Constituent Assembly on disputed issues.

• Following this unilateral decision, constitution drafting process is now in the hands of a majority process as demanded by the CPN-UML and Nepali Congress. Committee is preparing the list of dispute related questions and placing them before the Assembly for vote.

• Opposition Alliance asked for political neutrality but this was bypassed through the tabling of the proposal. The process has been started that could further polarise political issues instead of resolving them.

• Nembang has called his move the “Middle Path”; Committee will complete task within 5 days of completing work; Parties have until 10 days for consensus-only