Nepal's constitutional impasse: an insider's perspective

June 5, 2012
Source: Constitution Net: Supporting Constitution Builder Globally

On Sunday May 27, 2012, Nepal's Constituent Assembly (CA) was disbanded and fresh elections called after it failed to adopt a new Constitution. Elected in 2008, following the end of the decade-long Maoist insurgency which claimed approximately 16000 lives and resulted in the internal displacement of over 100,000 people, the CA was mandated to draft a permanent constitution within two years.

The process, however, was too often marred by political crisis, characterized by changes of political leadership, deadlocks in the Constituent Assembly and constant amendments to the Interim Constitution. The immediate consequences were delays in the drafting process and regular extensions of the Interim Constitution (which should have expired in May 2011), and the mandate of the Constituent Assembly (originally set to expire in May 2010). In a ruling in November 2011 – also reiterated on May 25, 2012 – that foreclosed the possibility of any further extensions to the CA's mandate, the Supreme Court held that the body would have to be disbanded should it fail to reach agreement by the May 27 deadline, as any other extensions would be illegal.

The dissolution of the Assembly therefore came as the most serious setback to the peace process. What were the issues at the centre of this recent crisis? What are its potential ramifications? How is this affecting public perception of the political class? What are the options, going forward?

A week after the collapse of the constitutional process, Bipin Adhikari, a senior constitutional lawyer, and external expert advisor to the Constituent Assembly Secretariat and the civil society sat down with IDEA's Constitution Building Programme to shed light on some of these questions.

You worked very closely with the CA, providing technical expertise on various aspects of the process. Was this crisis avertable?

Yes and No. Starting with the no, there are a number of reasons why this could only end the way it did. The first, obviously, is the lack of effective political leadership and inability of the leaders of major parties to lead the Constituent Assembly with commitment. The Assembly was embattled with several hard constitutional issues. They included fundamental differences between key stakeholders on whether the country should go for single identity or multiple identity provinces, the number of provinces and their boundaries, and failure to reach a compromise solution. This marred the prospect of federalization of Nepal, a key issue for many. Factionalism, which developed along ethnic lines, did not help the process. It blocked everything good that might have come out of it.

Second, the idea of buying time was not taken positively across the country. Beside the Supreme Court's stance against further extension of the Assembly, unless a new mandate was sought and granted in appropriate ways, the civil society was also unprepared to accept declaration of a state of emergency, which would have justified further extensions of the mandate by six months as per Article 64 of the Interim Constitution.

The most tragic part of the final day of deliberations was that the house was not allowed to assemble and deliberate and, party leaders were left to negotiate solutions behind closed doors. As such, the Assembly did not get the opportunity to collectively consider how to implement some of the exit plans recommended by the Supreme Court, should it fail to deliver a Constitution.

On a more positive note, the process could have been saved if the parties had focused less on some of their differences, which while fundamental, paled in comparison - quantitatively - to the issues they had reached consensus on. For instance, having agreed on federalism, the parties could have adopted the constitution as is, with a common understanding that the question of single versus multiple identity federal units - which was the tipping point - be deferred to the legislature. As the Interim Constitution allowed the CA to continue functioning as the legislative body until a new parliament is elected under the new Constitution, such an arrangement would have the body – sitting in its legislative capacity - to spend another seven or eight month developing necessary legislation to compensate the gaps left in the adopted Constitution.

Yet, not all the parties demonstrated a willingness to properly explore and discuss this. For example, in the final hours of May 27 when it was clear that the process was hitting rock, the chairperson of the Janjati caucus, Prithvi Subba Gurung who was interviewed – together with me and a Tharu leader, Surendr Prasad Chaudhari – on Kantipur television conceded that, rather than waste the opportunity for adopting a new constitution, they would consider multiple-identity provinces. But the Chairperson of the Assembly looked stressed out, and the ruling coalition of the Communist Party of Nepal (Maoist) and Madhesi parties showed neither the ability nor resolve to move in any direction.

A strong sense of popular disenchantment with the political class had already been building up due to the recurrent delays, and now is higher than ever with the recent developments: what do you see could be the social, economic and political ramifications of the current impasse?

Clearly there are important consequences, considering that the possibility of failure of the Assembly in crafting out the constitution was not contemplated, resulting in the absence of a contingency plan. Politically, the situation of major political parties is precarious. Growing factionalism within political parties- sometimes based on caste, ethnicity and region, is negatively affecting their general appeal. Many of the flourishing factions also lack broad- based representation and appear to be founded on political calculations. There is little organization and discipline. The democratic culture is fading out. The traditional harmony subsisting the Nepali society is gradually breaking.

From a social and economic dimension, the current impasse only means further delays in kick-starting the process of social and economic development which a new constitutional framework was to be the foundation for. This means the ordinary Nepali continues to struggle for daily bread while politicians continue to fight.

There is also the question of donor fatigue due to the lack of progress. Nepal has received a significant amount of international support, in the form of technical and financial assistance, from western governments and development organizations. These donors have been engaging with the government and local civil society and NGOs over the past four years. One therefore cannot talk of consequences and preclude the possibility of some fall back in this area, as the further the delays and lack of progress, the more likely Nepal will become less of a priority to donors who may become more interested in supporting processes elsewhere. This is an important consideration especially as the likelihood of success is also beginning to emerge as an important criterion for international engagement and support in national processes of constitution building.

Some Nepali think that electing a new CA is unnecessary and that an expert commission should be set up to write a draft which should be submitted to the parliament for debate and adoption. Any thoughts on that?

There is logic behind this argument. Common people, whose social and economic conditions are dire and only increasing, are losing patience with the government and politicians. It is difficult to convince them that a new election will produce an Assembly that has two-third members from one single party, and adopting a new constitution would not be a problem.

At this juncture, a high level constitutional commission drawn from the CA's Constitutional Committee seems the most pragmatic solution. Not only is it cost-effective, but also it politically the most manageable alternative right now. It should be charged with finalizing the draft constitution based on the progress made by the Assembly as of May 24. Its membership should also include some representatives from the wider CA. This can then be submitted for adoption to an elected parliament or to a popular referendum .

This process, while capitalizing on the achievements of the defunct Assembly, would also give solace to its members and create a positive spirit. The demise of the Assembly has given a jolt to everybody and people still hope that senior leaders can somehow still deliver.

For the benefit of constitution building practitioners in other contexts, what lessons do you think should be drawn from this experience?

I think what is unfolding in Nepal again brings to the limelight two important issues. One is that regardless of any similarities that may exist between country processes - whether at the level of causes or issues on the table – every context at the end of the day is distinct with different social, economic and political forces that can make or mar the project at any time. A second one is that constitution building is a process of evolution. It takes time and commitment. It is not a good idea to go for an ambitious process of constitution building in setting where leaders giving the leadership to constitution building happen to be of average capacity and poor democratic determination. Stability is a very important factor. In a setting where constitution building has little guarantee or patronage of powerful leaders, it is difficult to achieve.

Above all, when we talk about a Constituent Assembly or any deliberative process, let me emphasize that Nepal survives as a democracy in a very difficult geo-political context. Anything that happens here triggers - sometime direct, sometime indirect - voices that have little local roots. This affects the quality of decision making in the constitutional context as well. When leaders are inefficient, the challenges are enormous. They have been enormous in the context of CA as well.

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