Instability in Nepal will retard the economic development process, nullify the benefits of the new Constitution and also pose a serious security threat not only to Nepal but also to Bharat.
Nestled between two ancient civilisations, Bharat and China, the picturesque Himalayan Kingdom of Nepal is now officially a Federal Democratic Republic. Covering an area of about 147,000 square kilometres south of the Himalayas, Nepal borders Tibet on the north and Bharat on the east, west, and south. The three crore population includes 125 ethnic groups and speaks 127 languages. But for once the people and the Constitution makers spoke in one voice and voted for a Constitution that has taken almost eight years to see the light of the day.
Nepal’s tryst with Constitution can be said to have started as far back as 1854 when the then administrative head under the monarch, Jung Bahadur Rana promulgated the mulki ain, a bulky 1400 page doctrine on the legal, criminal justice and administrative system of governance. In the next two years he had established himself as the Prime Minister of Nepal, declared the King—considered an incarnation of Vishnu—a mere figure head and also paved the way for a hereditary rule by the Rana. This went on till the mid twentieth century. Though the British posted a special representative in the court of the Rana and also signed a Treaty of Perpetual Peace and Friendship, Nepal always remained an independent country.
The second and more serious attempt at Constitution making process began in 1945 during the tenure of Padma Shamsher Rana at the end of the Second World War. With the clamour for multi party democratic governance gaining momentum, many Nepal political leaders joined Bharatiya Independence struggle and carried the democracy movement back home.
This resulted in Nepal’s first Constitution in January 1948 which in fact sought to restore the Monarchy and yet have a powerful Prime Minister. But the short sighted Rana elite scrapped the Constitution and sent all political leaders into exile who in turn formed a formidable political force. Ironically the democracy movement restored the Constitutional Monarchy under King Tribhuvan Bir Bikram Shah and established an Interim Constitution which returned traditional powers to the king, established a judicial branch, and created a Bill of Rights.
However, for the next several years, King Tribhuvan appointed series of new ministries. No elections were held. The next king, Mahendra Bir Bikram Shah Dev, finally agreed to Parliamentary Elections in 1959, following substantial pressure from the people. Even as the election process was on, King Mahendra presented a new Constitution, providing for a elected, bicameral legislative body. Not all members were elected. The King appointed half of the Lower House and retained extensive executive powers. Strangely, within a year he himself suspended the Constitution and assumed emergency powers amidst conflicts and violence. By the end of 1961, political parties were outlawed. In 1962, King Mahendra established the new Panchayat Constitution. In 1979, King Birendra held a referendum allowing citizens to vote for or against the party-less Panchayat system. The party-less Panchayat system won with a narrow margin, after which the King formed an eleven-member Constitution Reforms Commission. The Commission’s work resulted in the 1980 amendment that established direct elections to the National Panchayat (a national legislature), a Prime Minister from within that body and a Council of Ministers responsible to the National Panchayat rather than the king.
In 1990, large protest movement pushed King Birendra to adopt the new Constitution which maintained the constitutional monarchy, but curbed the King’s powers and created a multiparty parliamentary form of government. This Constitution expanded personal freedoms, ended the ban on political parties, and established a Council of Ministers, led by the Prime Minister, to aid and advise the King.
In 1996, a Communist Maoist guerrilla movement began in the countryside, which destabilised the political system. Gyanendra Bir Bikram Shah, the next brother of King Birendra became king in 2001 in the midst of a maoist armed movement. Immediately after the royal massacre that eliminated the entire family of the King Birendra. He dismissed the government in 2002 for failing to contain the Maoist threat, reappointing the Prime Minister in June 2004. However, in 2005, King Gyanendra proclaimed a state of emergency, dismissed the government, suspended the Constitution, and set about suppressing the Maoist rebellion. After weeks of protests in 2006, the King was forced to reinstate the House of Representatives in April of that year. The elections marked the beginning of a ceasefire after ten years of guerrilla war that had claimed over 16,000 lives. The new House of Representatives, with a Maoist majority, abolished the monarchy less than a month after convening and adopted an Interim Constitution on January 15, 2007.
The interim Constitution was a compromise document between the seven major political parties. It replaced the monarchy with a republic headed by a ceremonial President, created a Supreme Court, and provided for the election of a 601 member Constituent Assembly (CA) with added responsibility of acting as a Parliament until the enactment of a new Constitution.
Under the Interim Constitution, executive power was vested in a Council of Ministers headed by a Prime Minister chosen through a ‘political consensus’ among the seven main political parties, failing which a leader commanding majority support in parliament was appointed as the Prime Minister. The Prime Minister and the Council of Ministers were collectively responsible to Parliament while individual ministers are responsible to both Parliament and the Prime Minister.
In the elections that followed the Maoists won approximately 30 per cent of the votes in the Constituent Assembly (CA) election of 2008. The major issues of contention involved the fate of 19,000 former Maoist militants, whether to adopt an executive presidency, and how to structure the new federal system. The Maoist wanted a federal structure with multiple identities, giving priority rights to dominant ethnic groups. The Nepali Congress and the CPN-UML argued that such a structure would undermine the democratic rights of other ethnic groups. A high level commission was established to reconcile different proposals for the structure of the provinces, recommending ten provinces. The party leaders then agreed on eleven provinces but backtracked under pressure from some tribal and Madhesi groups. Frequent leadership changes, political brinkmanship, amendments to Constitution and turf wars ended in a deadlock and no Constitution came up. As no party had the necessary two-third votes required to pass a new Constitution the process was stalled for ever.
In June 2010, Prime Minister Madhav Kumar Nepal agreed to resign in exchange for a deal with the Maoists to extend the deadline for finalising a new constitution by another year when the CA missed its two-year deadline. However, political turmoil and competition continued to delay the process. The CA was unable to elect a new Prime Minister tillmonths later, in February 2011, after 17 unsuccessful attempts to reach a political consensus. On May 29, 2011, a day after the expiration of the extended deadline, the Nepalese Government extended the deadline by another three months to August 29 and then to November 2011.
Unfortunately, none of these extensions resulted in a new Constitution and another deadline was set for May 27, 2012. With the Nepalese beginning to protest over lack of progress on the process, the Supreme Court ruled that the CA could not be extended again if it did not meet the May 2012 deadline. The CA was unable to meet this deadline, and in line with the Supreme Court decision, was automatically disbanded with lapse of its last extended tenure on May 27, 2012.
The dissolution of the CA caused a political deadlock. Maoist Prime Minister Baburam Bhattarai tried unsuccessfully to call new CA elections for November 2012 but was forced to step aside in March 2013. An interim government was set up under the leadership of the Chief Justice of the Supreme Court, Khil Raj Regimi. Elections for a new Constituent Assembly were held in November 19, 2013. The Nepali Congress and the Communist Party of Nepal (UML) won 105 and 91 of the 240 seats, respectively, while the Maoists won only 26. The second Constituent Assembly held its first meeting on January 22, 2014.
Issues such as federal structure, tribal and minority rights, nature of the state, women’s representation, power sharing with tribals and Madeshis and above all the restoration of full democratic rights were considered. The Parliament was also seized of economic development in the face of serious breakdown of industry and regular trade process.
Finally, The Constitution of Nepal-gathe 2072 was passed on September, 16, 2015 by the Constituent Assembly declaring Nepal as a federal democratic republic promising the people an inclusive and prosperous Nepal by institutionalising the achievements of almost all the democratic movements held so far in the country.
240 years of Unitary structure of governance gave way to a seven state federal democratic structure. The new Constitution that was formally promulgated on September 20 expresses the determination to build an equitable society on the basis of the principle of proportional inclusion and participation, by ensuring economic equality, prosperity and social justice.
The preamble of the Constitution also mentions people’s competitive multi-party democratic system, civic freedom, fundamental rights, human rights, regular periodic elections, voting rights, total freedom of the media, independent, fair and competent judiciary, building of a prosperous nation with the commitment to socialism based on rule of law, and democratic norms and values, and durable peace, good governance, development through the federal democratic republic. Earlier, the CA rejected a proposal to declare Nepal a “Hindu State” in keeping with the provisions of the first Constitution that declared Nepal as “Hindu Adhirajya”. The new Constitution assures the protection of the age old religions and culture and declares the country as secular with freedom to adopt any religion. While this may please those engaged in proselytisation and the new breed of Wahabi and Arabised Islamic proponents, a large section of the political class and people are uncomfortable at the mushrooming churches in the countryside and the series of madrasas dotting the Indo-Nepal border. The issue of rampant religious conversion is likely to create tensions and lead to strife at some stage.
As was expected, the Constitution also evoked strong protests and violent reaction from the Madeshi and Tharu groups who have every reason to believe that they have been cheated and rightly so, as they have been used as cannon fodder by the king, the political parties and the Maoists equally.
Amidst protests and violent rejection of the Constitution, Bharatiya foreign secretary S Jaishankar rushed to Nepal to meet with various stakeholders. He is believed to have even urged the government to delay the adoption of the Constitution, reconsider some of the provisions and hold serious discussions to bring all stakeholders on par and create a consensus.
According to reports New Delhi has reportedly identified at least seven amendments to the new Constitution after series of talks with various stakeholders and leaders of political parties.
- Article 63(3) –Provides Madhesi's with electoral constituencies proportional to their population be re-inserted in the text.
- Article 21 – Gives various groups the right to participate in state structures
- Article 283 – The stipulated qualification (being citizens by descent) to hold high-ranking government posts be expanded to include those, like many Madhesis, who have acquired citizenship by birth or naturalisation. The repressive clause seeks to limit posts such as the Prime Minister, The President, Chief Justice of the Supreme Court and other such vital posts to only those whose parents are of Nepali origin.
- Article 86 – It has been suggested that instead of giving each state a fixed number of representatives – which would put the Madhesis at a disadvantage, National Assembly representation should be based on the population of each state.
- Article 154 – Another suggestion is about the timeframe for delineation of constituencies to10 years. The present provision of 20 years seems to be illogical and not in the interest of larger population groups.
The present political and social structure of Nepal does not permit the political parties to disregard the demands of these estranged groups. A federal structure that fails to recognise and respect the distinct identity of all the sections of the people will not serve any purpose and create more fissures in the society.
Fortunately there is a sense of remorse among some of the political parties who have expressed willingness to reconsider some of the proposals. These recommendations are well-intentioned and should be taken in the right sprit instead of looking at them as interference in the internal matters.
(The writer is former editor of Organiser and now Secretary General of FINS)