Following the April 25 earthquake, Nepal’s constitution is moving precipitously towards a “fast-track” promulgation.
On June 8, Nepal’s four largest political parties surprised everyone by announcing that they’d reached a deal on the constitution, a deal that had eluded them long after May 2012, when the first Constituent Assembly failed.
This announcement came in a country brutalised by twin earthquakes on April 25 and May 17 and ongoing aftershocks, landslides and floods. In the affected areas, people are reeling from unimaginable personal loss, and rushing to build temporary shelters ahead of the monsoon, which is imminent. The state has struggled, with mixed results, to overcome its own failings, which are considerable. There is no clarity as yet on how it will help to rebuild 500,000 lost homes, resettle the internally displaced, repair infrastructure and rehabilitate livelihoods en masse.
News of a constitutional deal would have been cause for cheer had the parties not abused public trust over the past years, repeatedly, wilfully, spoiling every last chance to reach a consensus in the Constituent Assembly.
It is telling that in order to reach the June 8 deal at all, the parties first had to agree on who would be the country’s next Prime Minister: the winner of that ugly contest appears to be Unified Marxist Leninist’s ultraconservative KP Sharma Oli, should his failing health allow.
The deal’s contours
The deal came in the form of a 16-point agreement, some points of which were expected and others more contentious:
The parties agreed upon a bicameral legislature with an executive Prime Minister and a constitutional President. They wanted a 275-member Parliament and a 45-member Upper House. They favoured a mixed electoral system for Parliament, with 110 members elected via proportional representation. They wanted an independent judiciary, with a Constitutional Court to ease legal issues for ten years. They wanted eight federal states, the boundaries of which would be set by a federal commission, and the names of which would be passed by a two-thirds vote by the state legislatures. They wanted a new transformed legislature to govern following the promulgation of the constitution, and for local elections to be held as soon as possible.
There are several problematic points here, but criticism over the points concerning federalism, or points 1 – 3 of the agreement, was particularly sharp and swift, and deservedly so.
Federalism was never going to be easy to institute in Nepal. The citizenry is composed of 123 identity groups: Nepali society is an intricate mosaic of indigenous, caste and regional groups. Governance has historically been monopolized by men from the hill-based high castes – or, in Nepali parlance, Bahun and Chhetri men – who comprise only 15% of the population. For the vast excluded majority, federalism held the promise of inclusion at last.
A restructuring that excludes
From the outset it was clear that no identity group could, by itself, form a federal state. The federal states were always going to be pluralistic. Accordingly, the State Restructuring Commission set up under the first Constituent Assembly led a painstaking, nuanced dialogue over the numbers, boundaries and powers of the proposed states, paying especial heed to balancing the demand for inclusion with pragmatic concerns.
This nuance is echoed by the very first point of the parties’ 16-point agreement: “The Federal Democratic Republic of Nepal will have eight provinces based on five criteria of identity and four criteria of capability.” This may sound obscure to the uninitiated, but the five criteria of identity are: ethnicity/community, language, culture, geographical and regional continuity, and history; and the four criteria of capability as: economic interrelationships and capability, the status and potential for infrastructure development, availability of natural resources, and administrative feasibility.
So painstaking has the dialogue over federalism been, by last year the disagreements had narrowed down to only five of the country’s 75 districts. A consensus on federalism was within reach by last year: only the political will was lacking. Its lack was obvious.
This is why the parties’ agreement to put off federalism for now amounts to opportunism, and a very grave abdication of responsibility.
A task as momentous as state restructuring deserves to come through a popularly elected body; and Article 138 of the Interim Constitution (the constitution under which Nepal is governed today) explicitly states that the Constituent Assembly will determine the names, numbers and boundaries of the federal states. The Interim Constitution had already accepted federalism: the Constituent Assembly’s task was, indeed, to give it a specific form. It is wrong to say, as Finance Minister Ram Sharan Mahat has, that state boundaries weren’t supposed to be determined by the constitution.
To postpone federalism is to play with fire. It takes no great genius to see that decisions made by an unelected committee will lack legitimacy and invite conflict. The fear is that such conflict might create a climate in which federalism is delayed indefinitely, or in the worst case, not instituted at all. It comes as no surprise, then, that indigenous rights groups and Madhes-based parties have strongly opposed, and even burned, the 16-point agreement.
But they are outnumbered in the Constituent Assembly, and the state is desperate to show something for itself ahead of an important, and possibly lucrative, donors’ meeting called for June 25.
Demonstrating rare alacrity, on June 8 the Constituent Assembly asked its Political Dialogue and Consensus Committee (or PDCC) to resolve all disputed issues – except for federalism. This the PDCC has done swiftly, and on June 10 its recommendations returned to the Constituent Assembly for further discussion and voting.
Interestingly, though the PDCC stuck to the parties’ 16-point agreement by sidelining federalism, it included, by its own initiative, a much-disputed bill on citizenship.
This bill, and the silence around federalism, demonstrate the dangers of the slippery “fast-track” that Nepal is on.
The citizenship bill was supposed to correct a long-standing prejudice in the letter and practice of law that forced up to 4 million Nepalis to be stateless, in clear violation of international law. Nepal’s feminist movement had pressed hard for a new bill allowing citizenship to be conferred through mothers “or” fathers, as opposed to mothers “and” fathers. The PDCC refused, using obfuscating language to try and pretend otherwise. By the admission of the PDCC’s own chair, former Prime Minister Baburam Bhattarai, the bill before the Constituent Assembly right now discriminates against women.
Earthquake as excuse
And so Nepal’s brutalized citizenry is now faced with the traumatizing prospect of getting a partial, discriminatory – but fast-tracked, or in PM-hopeful Oli’s words, “super fast-tracked” – constitution.
Which begs the question: don’t we deserve better?
The citizenry have waited beyond the point of patience for this constitution. The only point of drafting it at all was to transform a state that has always been governed by a small gender and caste elite to a state that is inclusive, pluralistic and truly democratic. At this late stage, a constitution that discriminates against women, and that refuses to institute federalism – the central demand of indigenous, regional and marginalized caste groups – will result in a state governed, once again, by the gender and caste elite. This is what Nepal has ever had.
And here, to me, is the clincher: this partial, discriminatory constitution is being rushed through when the citizenry are least able to participate in what should by rights be a national consultative process.
As veteran journalist Kishore Nepal observed on Twitter, earthquake survivors in the hard-hit district of Dolakha haven’t felt the political aftershocks that are rocking Kathmandu.
They’re simply too occupied with day-to-day survival.
Indeed, it is difficult not to feel that the parties – all led by high-caste men – are trying to use the earthquake as an excuse to push through an exclusionary constitution, to keep down women and indigenous, caste and regional groups.
Especially at this juncture, this is shockingly irresponsible. Commentator CK Lal has pointed out that approximately 70 percent of the earthquake’s victims are indigenous, and 13-14% are Dalit. More than half the victims are women. An exclusionary constitution would make those who are already vulnerable even more so.
Come back to consensus
This is not to say that Nepal shouldn’t get a new constitution, and soon. It is certainly within reach, as it has been for a while now. It should definitely be promulgated: but in a form that decreases, rather than increases, citizens’ vulnerability.
That is the only responsible option.
After a few days of dizzying activity, the time has come for sober reflection.
It is one thing for the political parties to try to abdicate their responsibilities, and quite another thing for the Constituent Assembly to try to do so.
From the start of Nepal’s long exercise in drafting a new charter, the parties have pledged to pass a constitution by consensus, rather than by a majority vote. The Constituent Assembly should now uphold this spirit of cooperation.
It should take an extra few months and complete the constitution, and make it one that all Nepalis, including the excluded majority, can see themselves in.
Only then will Nepal be able to move on with the task of national rebuilding, which is urgent.
Manjushree Thapa is a Nepali writer and author of several books including Forget Kathmandu, Tutor of History and Seasons of Flight