Crafting a constitution for Nepal

In Nepal, there are hurdles to the constitution drafting that have to be resolved urgently if the radical leftists and the royalist right are not to blow away hard-won freedoms. As a player in Nepal politics, the best support India can provide is by staying outside the convention of constitution writing

March 19, 2015 02:11 am | Updated December 04, 2021 11:32 pm IST

Nepal is trying to write a constitution for the second time, after the first Constituent Assembly (CA) of four years collapsed in May 2012. The entire polity and economy of the country have suffered a state of suspension since 2006, when the People’s Movement and the end of the decade-long internal conflict promised peace and prosperity.

For a land richly endowed by nature, Nepal’s lot has been poverty and marginalisation since the unification two-and-half centuries ago down to the present, through oligarchy, monarchy, and obstinately unstable democracy. The ongoing attempt is to erect the newborn republic on a strong foundation of pluralism and representative politics, and make Nepal an exemplary democracy of South Asia, which its size and sensibility allow.

But these are precarious days. There are hurdles to the constitution drafting that have to be resolved urgently if the radical leftists and the royalist (Hindutva) right are not to rear up and blow away hard-won freedoms. India has been a player on the complex Nepal chessboard, recently leaning towards micromanagement of internal affairs, and the best support it can provide is staying outside the laxman rekha of constitution writing.

Passionate discourse There are three main pending issues before the second CA, more or less the same ones that brought down the earlier one — secularism, electoral process and definition of federalism. On secularism, there is a rising undercurrent to redefine Nepal as a Hindu state, and a whole phalanx has taken energy from the Bharatiya Janata Party’s electoral success in India. However, such a definition would be incompatible with the range and layers of Hindu belief and practice in Nepal, plus the fact that 20 per cent of the population is non-Hindu.

The term “secularism”, on the other hand, is imported from the Indian Constitution (as amended) and, translated as “ dharma nirpekchhata ”, carries an exclusionary denotation that rankles many. All else remaining the same, the framers can probably agree on declaring Nepal “ dharma bahool” ( with religious pluralism) or do away with mention of religion altogether, to respect all and injure none.

On the electoral scheme, the tussle is between those favouring the first-past-the post system for effective governance and others who maintain that only proportional representation can reflect Nepal’s diversity of marginalised communities. The effort is on to find the acceptable proportional-to-direct elections ratio, and a compromise will probably be reached between half-half and 70:30.

It is the demarcation of federal provinces that has the hackles up on all sides, and it is here that communal passions could flare up, particularly on the hill-and-plain dimension. The resulting polarisation would set the country back by another decade, and impact variously the neighbouring States of India as well.

Demarcation debate Nepal was officially declared a federal democratic republic in 2008, but the debate on federalism has yet to mature to the level of allowing demarcation. There is a bewildering web of positions and demands that the CA has failed to address; some have not even made it to the table.

It is vital to satisfy the Madhesi and ethnic activists that the deferral of decision on federalism does not at all mean abandoning it.

In the CA, the Nepali Congress (NC) and the Communist Party of Nepal (Unified-Marxist-Leninist)-UML can come up with the two-thirds majority required for promulgation. However, they have not been able to generate momentum for constitution drafting, laid low by the lacklustre performance of their coalition government. More importantly, the two parties have not been able to effectively counter the position of the Maoist-Madhesi Morcha, which is that the November 2013 election results (“ mataadhesh ”) do not reflect the people’s will (“ janaadhesh ”), an argument that is anti-political as much as it is anti-people.

Truth be told, the roadblock to constitution writing is not on the matter of principle, but the political careers of a dozen or so senior opposition leaders. In the case of both Maoist Chairman Pushpa Kamal Dahal (‘Prachanda’) and senior leader Baburam Bhattarai, their instigation of the ‘people’s war’, the stonewalling on accountability for war crimes, as well as the economic devastation wrought by their party’s actions make them fearful of the future.

Seeking collapse Mr. Dahal is pursued by several personal demons — the possibility of investigation into alleged loot of the exchequer, international jurisdiction for conflict era crimes, and the collapse of his ambitions of emerging as directly elected president. Mr. Bhattarai, for his part, has remained deputy to Mr. Dahal for too long and is desperate to get the party chairmanship. He recently visited New Delhi in early March hoping to reinforce his known image of being “India-friendly” for political advantage back home.

Both leaders suffer under the knowledge that there is another two-and-half years remaining in the life of the second CA (also serving as Parliament). Meanwhile, the Supreme Court has just confirmed that grave human rights abuse of the conflict era must undergo criminal procedure, striking at the heart of the political aspirations of Mr. Dahal and Mr. Bhattarai. Under the circumstances, without a plan at hand, the Maoist leaders would like to foment political chaos hoping that something, somewhere will collapse to their advantage.

Others who lost badly in the 2013 elections were the stalwarts of the Madhesi Morcha, when the Terai (the plains) voters opted for the NC, the UML and the Hindutva-oriented Rastriya Prajatantra Party (Nepali) party of Kamal Thapa. And yet, the Madhesi Morcha’s line against Kathmandu’s “ pahadiya ” (hill-dweller) elites resonates among the restless Madhesi youth, giving it traction.

While the sense of alienation provides a level of unity against Kathmandu, however, the plains are not as homogeneous as the Morcha leaders (mostly from the east-central belt of the Terai) would like to suggest. Beyond the division by language (Awadhi, Maithili, Bhojpuri, etc), there are many permutations of identity among the citizens of plains origin, with cross-cutting layers including the Madhesi (incorporating the Dalits from the plains as the most marginalised nationally), Muslim, Tharu and other plains ethnicities, as well as a significant number of pahadiyas .

The demography of the plains is thus rather intricate, and it would be unwise to concede on any proposed federal arrangement out of sheer exasperation, whether identity-based or on economic geography. We need a way to hold off on a decision, to allow a more considered approach in which the protagonists do not talk past each other. Simultaneously, it is vital to satisfy the Madhesi and ethnic activists that the deferral of decision on federalism does not at all mean abandoning it.

The India hand By some believable accounts, the plains-specific province(s) idea was thought up by Indian diplomats and intelligence operatives, with the Madhesi Morcha leaders made to carry the burden as a kind of ideology. If the plan is to create a geopolitical buffer for India astride the open border, that itself is objectionable for seeking to render the Terai plains and its Nepali citizens as some kind of bulwark for India.

With the arrival of the Narendra Modi-led government in New Delhi, there seems to be second thoughts, at least in some quarters, about the viability of the proposed plains-specific provinces. Some strategists in India are now wondering whether this prescription is not geopolitically fraught, with dangers of making Nepal a stomping ground for international adventurism.

From this writer’s perspective, however, the most important concern is that nothing should be done to further impoverish the Terai population, the likely result of a plains-only province when the concentration of investment in the coming years is likely to be in the hills.

Last week, the Maoists and Madhesi Morcha, unlikely collaborators, announced agitations against the attempt by the NC-UML to take forward the proper procedure of constitution drafting, leading ultimately to a vote on provisions. The upcoming protests could well lead to a collapse of the second CA, and the people’s opportunity to write their own constitution wrested by the very leaders who claim to have birthed the idea of both the Constituent Assembly and federalism.

The best option for now is to promulgate a constitution that confirms a democratic, federal, non-denominational Republic of Nepal, while leaving the matter of federal arrangement to parliament or to a credible, high-level commission. If the country finds itself without a constitution after eight years of trying, the politicians and political parties of Kathmandu will be the first to be held accountable. But history will also ask New Delhi about its role in the debacle.

(Kanak Mani Dixit is publisher of Himal Southasian magazine based in Kathmandu.)

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