Constitutional Crisis in Nepal

Nepal is governed according to the Constitution of Nepal, which came into effect on September 20, 2015, replacing the Interim Constitution of 2007. The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period

Previous Constitutions

Previous constitutions of Nepal were enacted in 1948, 1951, 1959, 1962, 1990 and 2007.

1. In 1948, the Government of Nepal Act was enacted. Since the mid-nineteenth century, the country had been a monarchy where the prime ministers, from the Rana dynasty, had sweeping control over the affairs of the state. The 1948 document introduced limited democratic elements, but the experiment was not successful due to the misgivings of the Rana rulers to give away power.
2. The revolution of 1951 in Nepal, also referred to as Sat Salko Kranti(“Revolution of 2007 BS”), was a political movement against the direct rule by the Rana dynasty of Nepal. It marks the beginning of the political awakening and democratic movements in Nepal, and resulted in immediate abolition of the institutionalized hereditary Prime Minister system in Nepal.
3. The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 that the end of the Rana period. This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state.
4. The CONSTITUTION OF THE KINDOM OF NEPAL, 1959 followed the previously mentioned interim text. Interestingly, despite the establishment of a bicameral parliament, the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances.
5. In 1962 a new constitution came in to eliminate political parties, and to introduce the so-called panchayat system. In this model, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959 regime and could modify the constitution or suspend it in case of emergency.
6. In 1990, the first Jana Andolan, brought multi-party democracy back to Nepal. The 1990 People’s Movement  was a multiparty movement in Nepal that brought an end to absolute monarchy and the beginning of constitutional democracy. It also eliminated the Panchayat system. The movement was marked by a unity between the various political parties. Not only did various Communist parties group together in the United Left Front, but they also cooperated with parties such as Nepali Congress. One result of this unity was the formation of the Communist Party of Nepal (Unified Marxist-Leninist).
7. The CONSTITUTION OF THE KINGDOM OF NEPAL(1990) lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights.
8. Again following the second jana-andolan an interim constitution was promulgated in 2005.

Distinguishing Features of New Constitution

The new Constitution, promulgated on 20 September 2015 has many distinguishing features.

1. It has been adopted by an overwhelming majority of 507 out of 598 members of the Constituent Assembly.
2. The Constitution enshrines the principles of republicanism, federalism, secularism and inclusiveness.
3. The preamble of the Constitution also incorporates the principle of “socialism based on democratic values.”
4. It incorporates proportional representation to ensure that women, untouchables (Dalits), and marginalised groups like the janjatis and the Madhes find representation in the national legislature and in the other ­institutions of the state.
5. The new legislature will have 275 seats in the parliament of which 165 will be filled by direct elections (first past the post) and 110 will be based on proportional votes.
6. It bestows fundamental rights and freedoms on its citizens and provides for specific constitutional commissions to take care of discrimination against women and marginalised groups.
7. The President would be the constitutional head of the state, elected by a collegium of central and provincial legislative bodies.
8. The head of the executive will be the prime minister elected by parliament through a majority vote.
9. There would be an independent judiciary, nominated by a Judicial Commission.
10. In the interest of stability, neither the prime minister will be able to dissolve the parliament on his own nor will the parliament accept a ­no-confidence motion against a prime minister before the lapse of two years.

Controversy

Despite these impressive features, the new Constitution has become a highly controversial document.

1. It has been disapproved by the large constituencies of the marginalised groups—the Madhes, Janjatis, and women. They are agitating as their aspirations have not been substantially addressed.
2. There are six main agitating groups, namely, the Madhes parties, the Janjati groups, women, monarchists, Hindu fundamentalists and splintered extremist Maoists.
3. The differences of these agitating groups from those of the Constitution makers lie in five areas. These are,
   1. the carving of federal provinces,
   2. proportional representation,
   3. citizenship rights,
   4. the identity of the Nepali State, and
   5. its ideological parameters.

Protest of Madhes parties

1. The Madhes parties have disapproved of the seven province structure of federalism and the manner in which their boundaries have been carved out.
2. From the beginning they were asking for at least a 10 province structure with one single Madhes province. Later, they were ready to settle for two Madhes provinces. They were however never taken on board while deciding constitutional issues and the federal structure. When they knew that the dominant parties had decided on a six province model, they started abstaining from the Constitutent Assembly proceedings.
3. The Tharu leader Gachchdar of the Madhes Forum, who had joined hands with the dominant parties, also withdrew from the process when six provinces were changed to seven provinces, but without the accommodation of Tharu majority districts (Kanchanpur and Kailali) in the western Terai province.
4. The other Madhes parties have objected to three of the eastern-most districts (Sunsari, Morang and Jhapa) being kept out of the eastern Terai province. Their objections are also related to the adding of the hill districts in the western Terai province .
5. Their allegation is that carving out of the Terai province’s boundaries have been dictated by narrow interests of a few dominant parties’ leaders belonging to upper hill castes.

Janjati’s Protest

1. The Janjati groups are upset for being denied identities to the provinces and also that their boundaries have been drawn in a manner that the upper hill castes will continue to dominate the provinces politically.
2. They also oppose the reduction of the proportionate ­representation in parliament from 58% under the interim constitution to 45% under the new Constitution. This will affect them adversely.

Women’s Protest

1. Women who have otherwise been assured of 33% representation in the central legislature and the post of either chief or deputy chief are angry on the question of citizenship because motherhood was not considered as the basis of citizenship.
2. This was done largely to keep out such children who are born of a Nepali mother and a foreign father.
3. Only those with citizenship by descent will be entitled to high posts. There are also a number of Indians married to Nepali spouses who will have to go through complicated legal procedures for acquiring naturalised citizenship.
4. There is fear among the Madhesis, who are affected most by such provisions, that a large number of such persons ­(estimates vary from 1–4 million people) may remain stateless.

Hindu Fundamentalist’s Protest

1. The monarchists and Hindu fundamentalists are working together to ask for making Nepal a Hindu state and reinstating monarchy. 
2. Some reports even suggest that former King Gyanendra claimed that he had assurances from the highest political quarters in India about the revival of Nepal’s monarchy.
3. These groups also wanted to remove the word “secular” from Nepal’s new Constitution.
4. The dominant parties have only partially accommodated their concerns, by making cow the national animal (to prohibit cow slaughter in ­Nepal) and by defining “secularism” as “religious and cultural freedom including protection of religion and culture prevalent since ancient times.”

Maoists Protest

1. The last group protesting against the new Constitution are the breakaway Maoists.
2. They have been against the very process of writing the Constitution through the Constituent Assembly, since they did not participate in the elections.
3. Their demand has been of holding an all party round table to write the Constitution. They opposed the coalition of the NC, UML, the Prachanda-led Maoist party and the Gachchdar group of Madhes party for writing the Constitution.

Nepal stands socially and politically polarised as a result of the agitation against the Constitution. Unless the dominant political parties in the government take serious and sincere initiatives to accommodate the agitating groups, Nepal’s hopes of stability and progress under the new Constitution may not be realised.

Is  new constitution a step forward or backward?

1. Nepal has had six constitutions so far and the problem in Nepal has not been writing the constitution but the ownership of constitutions. All the previous constitutions have not been owned by all sections of the society and all political forces. These constitutions have not been sustainable.  Previous constitutions were written by monarchs, but this has been written by elected people in the constituent assembly (CA). That is a positive difference.
2. The idea was that the Constitutional Assembly :
   1. would be a platform where people from the diverse social groups of Nepal would sit together and collectively participate in drafting a document and would  have the same common rules for all.
   2. would bridge and overcome the social and ethnic divisions existing in Nepal.
   3. would create a political structure where different ethnic groups and social groups, particularly excluded ones, would get to exercise power and be a part of more inclusive order.
3. Based on these principles, the CA has failed. It is a setback because the constitution is not owned by a substantial section of the country.
4. It is not only the ownership, but also the process through which the constitution has been adopted that is questionable. The entire process has been hijacked by a few leaders, all belonging to the upper caste communities.
5. The CA was supposed to create inclusion and provide political access to marginalized social groups, but what has happened instead is that the constitution has been framed and political boundaries have been redrawn in a way that ensures the dominance of the traditional political elites: the upper caste people of the hills.

International and Indian Response

International reactions to Nepal’s new Constitution have been mixed.

1. China and the European Union have welcomed the new Constitution. The Chinese are particularly happy that their concerns to avoid an identity-based federal structure have been taken care of. The Chinese may also not resent the continued dominance of the hill upper castes in the ­Nepali state, with the Janjatis and Madhesis continuing to remain on the periphery of core political power. 
2. India and the United Nations have only taken “Note” of the new Constitution, without welcoming it. Both have expressed concern for “violence” and emphasised the importance of dialogue and negotiations between the government and the agitating parties.

Indian Response

1. Strong Indian reaction is focused on violence and instability in the Nepal terai. This has implications for the adjoining Indian states of Bihar and Uttar Pradesh.
2.  The reasons for the Indian leadership’s frustration with the dominant parties in Nepal are that they have failed in delivering a truly inclusive constitution in conformity with the promise of the peoples’ movement of 2005–06 (Jan Andolan-II) which India had so actively supported.
3. While ignoring India’s concerns and advice, Nepal has also blamed India for encouraging disturbances in the Terai and interfering in its internal affairs. The continuing instability will not only allow undesirable local and external forces to exploit the situation to the disadvantage of both India and Nepal but will also result in difficulties in the supplies of essential items reaching Nepal from India. The Government of India hinted at this possibility in an official statement on 21 September 2015. There are reports already of fewer transport vehicles reaching Nepal from India and long queues of those waiting for petrol on Kathmandu petrol pumps.
4. Though India’s frustration with Nepali leadership may be justified, there is need for India to calibrate its reactions and responses with some caution. The adoption of a democratic Constitution in Nepal, howsoever imperfect, has been a historic achievement which should have been welcomed by New Delhi. For gearing the Nepali Constitution in a desired and balanced direction, Indian diplomacy should have remained actively engaged, in a sustained manner.

India’s response to Nepal’s constitution-making

It unfolded in three different stages.

1. The first stage was one of “hands off” (expression informally used by Indian officials) stage. Here India appeared assured and somewhat complacent in letting the process evolve in the hope that suggestions for an inclusive constitution offered by the Indian leadership, including by Prime Minister Modi in his engagements with the Nepali public and leaders at various levels, would prove sufficient.
2. The second stage was that of stressing the point that “any constitution is better than no constitution” . That stage coincided with the efforts of the four-party combine in Nepal (the NC, the UML, the Maoists and the Tharu Madhes group) working out the contours of the new constitution by July 2015. At this stage various Nepali leaders were in­vited to visit Delhi and a number of ­poli­tical emissaries from both sides exchanged visits.
3. The third and what may be called as the panic stage was reached when New Delhi realised that Nepal’s constitutional process had slipped out of their reach. The Nepali media made  allegations of Indian interference started flowing through. The Indian establishment got a feeling that while India was being ignored, lobbyists working on behalf of China and the European Union, and Christian groups were being accommodated.

Why India was ignored?

1. They did not listen to Indian advice because, at the core, they just want to entrench elite power in Nepal.
2. When it comes to these kind of base political calculations external actors cannot play greater role. It is an internal balance of power which was in the favor of the upper caste groups.
3. Another reason is the shared ambition. The ambition of various parties has come together; they all realize that they are in the same boat and they have their own political aspirations. This is more important than any Indian advice.
4. India reacted a bit late. It should have woken up to the crisis earlier.  By the time India reacted, events had already unfolded in Nepal.
5. Lapses by Indian Diplomacy
   1. While conveying its preferences for an inclusive constitution, Indian diplomacy failed to follow the internal dynamics of Nepali politics.
   2. It failed to grasp the direction of posturing and power sharing among the dominant political players and stake holders, so as to move them in the desired direction.
   3. Conflicting and confusing messages from the formal policymaking establishments and from the diverse constituencies  were going to Nepal.
   4. It was not clear as to what were India’s priorities: an inclusive constitution addressing Madhes concerns or an accommodation of Hindutva and monarchical preferences, or perhaps both.
   5. Lapses on the part of Indian diplomacy now pushed it in the company of Nepali Hindu fanatics and left extremists on the one hand and marginalised forces on the other. This situation is being exploited by the traditional anti-Indian constituencies in Nepal.

What India should do?

There is an urgent need for India to extricate itself from this unfortunate ­situation. India needs to change its diplomatic posture from a hardline position to quiet and creative initiatives where it can nudge both the marginalised and the dominant governing groups in Nepal to engage with each other meaningfully to work out credible and lasting compromises. The Nepali Constitution is flexible, it has ample room for amendments and given the political will, reasonable solutions would surely be possible.