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2 0 0 9 5 Federations
forumfed.org
Nepal Special Issue
here are many ways to make a
constitution. Even within
Nepal, constitutions have been
made in different ways. At first,
they were « bestowed » by a Rana or a
King. Even when they were not drafted
by the palace, they came into effect by
royal proclamation. Sometimes a
constitution was drafted by an expert or
a committee of experts. There was no
consultation with the people, except in
a limited way for the 1990 constitution,
and even this had little impact on the
Constitution-making
in Nepal
People raise demands for justice and social transformation
BY YASH GHAI AND JILL COTTRELL
substance of the constitution. That
process seems to have been dominated
by a small expert body, with close
connections to political parties and the
palace. Even the Interim Constitution,
which replaced the 1990 constitution
after the janaandolan or People’s
Movement of 1990, was adopted without
consultation, although it obliges the
government to enable the people to
draft their own, permanent constitution.
The current process of constitution
making is now the task of a popularly
elected Constituent Assembly (CA), for
the first time in Nepal.
Each constitution represented only
marginal social and political advances,
and continued to exclude the great
majority of the people from political or
economic power. As a result, each of
these constitutions was challenged, as
groups excluded from political power
expressed their grievances and
demanded justice.
As constitution making becomes more
participatory, constitutions increasingly
T
Yash Ghai and Jill Cottrell are scholars in constitutional law.
Members of Nepal’s Constituent Assembly check for their names before voting at Parliament House in Kathmandu on July 19, 2008. The
Constituent Assembly was set to elect its first president from the Madhesi community – a group that inhabits Nepal’s lowlands called
Madhes or Terai. Out of 601 Constituent Assembly members, 191 members are women.
REUTERS/GOPAL CHITRAKAR
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Nepal Special Issue
incorporate principles of democracy and
social justice. The history of constitution
making in Nepal reflects these global
trends, which are reinforced by
developing international norms, the
easy availability of information about
experiences of other countries, and
sometimes a significant role of the
international community. Nevertheless,
the national context also influences the
process, and although there is now
considerable knowledge of comparative
experience among Nepalis, the decision
makers do not seem to have been much
influenced by it. Key to the process in
Nepal are negotiations among party
leaders. Yet not everyone is happy with
this process. One member of the CA
called for maximum feedback from the
general population during the process of
drafting the constitution, to balance the
risk of decisions being made by a small
group of leaders.
Dealing with post-conflict issues
In post-conflict states, constitutionmaking
is part of a series of processes that
includes agreeing on a ceasefire and
interim arrangements for administration
of the country, bringing insurgents and
dissidents into state structures,
negotiating constitutional principles
and the framework for deciding on the
new constitutional arrangement, and
holding elections for a new, legitimate
government. Nepal has closely followed
this sequence, and the progress on
peace building determined the pace of
constitutional change.
In some ways, the task of constitution
making in Nepal is both easier and more
difficult than in many other post-conflict
states. It is easier because the insurgency
was focused on political ideology, not
deep-rooted ethnic conflict which
leaves a bitter legacy of division and
hatred – and the protagonists came from
the same class background.
It is more difficult because the very
settlement of that conflict, preceded by
the 2006 People’s Movement or Jana-
Andolan-II triggered new demands. The
insurgency and the Maoist appeal to
marginalized communities – rather than
merely class struggle arguments that did
not have much appeal – created or
renewed awareness of oppression, and
encouraged the emergence of identity
politics, calling in question the old model
– the dominance of essentially one
group. This raised fundamental
questions about the nature of the state
and its « cultural » or « national »
foundations. A critical issue that needs
to be resolved is the nature of Nepali
nationalism or identity. The question of
identity is closely connected to, and
finds sustenance from, social
deprivation, discrimination and the
poverty of many communities. This
makes social justice a major issue. If the
people’s movement of 1989, which led to
the 1990 Constitution, was seen as
concerned with political power and
state structures, the present movement
is seen as essentially about social justice
and societal transformation.
Tackling transformation
Encapsulated in this movement are a
number of inter-connected
« revolutions » or transformations which
need to be tackled simultaneously: most
obviously, monarchy to republic;
hegemonic Hindu and Nepali-languagebased
rule to inclusiveness; feudalism
and authoritarianism to democracy;
caste and social hierarchy to equality of
gender, caste and ethnicity; and – as yet
unresolved – feudal-capitalism to
socialism or communism. Most of these
are divisive, even though considerable
lip service is paid to some of them, such
as « inclusion. » The complexity of change
becomes obvious when the implications
of each transition are analyzed. For
example, the transition to republic is not
merely a matter of form – as it might be if
the monarchy were abolished in a
Scandinavian country, for example. In
the past, the monarch symbolized the
state and nation, especially as head of the
Hindu religion and as an icon of history.
Some used to think it was the glue that
kept the country together, but others,
increasingly, think that it reflected the
worst features of Nepal, such as
hereditary tradition, source and support
of hierarchy, exclusion, and
authoritarianism. Nepalis are now
looking for new symbols in a post
monarchical age. There is more to this
transition than merely what kind of
presidency should replace the
monarchy.
The transition from feudalism and
authoritarianism to democracy is not
only, or primarily, an institutional issue.
It is fundamentally a matter of values and
the culture of democracy, the
empowerment of the people, awareness
of and respect for human rights, and the
centrality of political parties.
Inclusiveness is perhaps the most
difficult aspect as it involves identity and
nationalism, electoral systems, the
nature of the governmental system and
its recruitment practices, perhaps the
recognition of group rights, and fresh
thinking about the place of language,
religion and tradition. Federalism, which
is very much on the agenda but also very
controversial, as there are no Nepali
precedents, will be extremely hard to
conceptualize and harder to negotiate.
And the Marxian dialectics of the change
from a feudal to a market and then a
socialist economy, which Maoist leaders
have sometimes talked about, will
compound these complexities.
Crucial steps in nation-building
Thus, the question is what kind of a
process for making the constitution will
facilitate these transitions? The
challenge involves both state-building
and restructuring, and nation-building.
Nation-building is crucial because the
state must reflect the kind of Nepal the
people can agree on. At one level, there
seems to be agreement on the principles
and values of the New Nepal, or Naya
Nepal. On closer inspection, most of
these appear to hide fundamental
clashes of interests, approaches and
priorities. Negotiating a constitution is a
way to resolve differences, and agree on
values, institutions and procedures to
replace previous differences and modes
of conflict. Properly organized, under
enlightened leadership, constitutionmaking
can also contribute to
reconciliation and healing. Equally,
without goodwill and wise leadership, it
can be divisive. The process must allow
the airing of grievances, but not allow
them to take over. And the process must
be one of moving on while
acknowledging the past.
There is no better time than during
constitution-making to engage people in
discussion about public powers and
institutions, and their purposes. Without
some public awareness of the
mechanisms of the state and an
understanding of democracy, the new
constitution, however well-crafted,
would probably fail to take root.
Democracy is almost never the result
merely of a legal instrument or charter.
There can be no democracy without the
commitment of the people to it and their
willingness and ability to participate in
public affairs, co-ordinate their interests
and lobby for them, exercise and protect
their rights, and take seriously their own
2 0 0 9 7 Federations
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Nepal Special Issue
responsibilities as citizens. As is
common in many countries, people in
Nepal, especially in rural communities,
have only a fragmentary understanding
of the institutions and procedures of the
state. Moreover, in Nepal, people have
been subordinated to feudal and
authoritarian systems of government
and need to be persuaded that they may
now freely exercise their rights.
There are three very specific reasons for
participation. And three elements
constitute the core of the People’s
Movement: a new identity as a Nepali,
inclusive democracy, and social justice.
None of these can be achieved without
the active participation of the mass of the
people, representing Nepal’s myriad
social and ethnic communities.
Participation means a great deal more
than voting to elect delegates to the CA.
It also encompasses the active
commitment of the people in defining
the agenda of reform and the
instruments for social and economic
change, through debate, argument and
consultation, not only in Kathmandu but
throughout the country. It means
identifying, through the narratives of
victims, the causes of oppression,
injustice and the silencing of
inconvenient voices. It means allowing
opportunities for the people to learn
about Nepal’s constitutional history, and
the experiences of other countries with
similar problems, and to enhance their
capacity for developing democracy.
Finding the perfect mechanism
On the surface, it seems that Nepal has
found a perfect mechanism for
participation. It has a constituent
assembly elected by the people, through
rules that, while not ensuring full
proportionate representation of
marginalized communities, are infinitely
better than ever before. A constituent
assembly has eluded Nepalis until now,
despite promises, and much is expected
of it. But the people’s expectations might
not coincide with those of the party
leaders. There has been growing public
impatience with the CA for not beginning
to write the constitution after several
months of deliberations. Elections for
the Assembly were twice postponed, but
they could not be avoided forever. If
public pressure could no longer be
resisted, it could perhaps be deflected
once the CA was in place. An assembly
tightly controlled by party bosses, with
members of the marginalized
communities brought in by courtesy, and
under the auspices of the existing parties
and subject to their whips, could yet
undermine participation – unless the CA
members assert themselves, and civil
society supports them – by making
submissions and demanding
accountability.
Even though a CA is in place, with the
potential for a national, participatory
process, the constitution could
effectively be made by a small group, and
the 601-member assembly could
become a rubber stamp. Even
participatory processes need the
support, if not the sponsorship, of
political parties, with either an interparty
coalition, or a dominant party.
Which way will Nepal go?
Phases of constitution-making
There have been three phases of
constitution-making in Nepal since April
2006. The first was the truncated 1990
Constitution, stripped of provisions
regarding the monarchy, and of some
democratic accountability, by a
resurrected House of Representatives
(which had been previously dissolved by
the king and whose natural term of office
had expired). The second was the
Interim Constitution, which was drafted
by the parties, with decisions taken at the
highest level. Its dominant principles,
which now reach into the proceedings
of the CA, are twofold and
interdependent: control by eight parties;
and consensus among them. The second
is under pressure – and has already
jeopardized the first. If these principles
collapse, the procedure will revert to a
form of qualified majority voting – and
open up possibilities for a participatory
process. But it also could threaten the
process itself.
A woman carries a large bundle of straw on her head. Eighty-five per cent of Nepalis live
in rural areas which lack roads, electricity, drinking water, hospitals and schools.
EYE UBIQUITOUS/REX FEATURES