Nearly two months after elections for a new Constituent Assembly (CA-II) were conducted in Nepal in November 2013, the freshly constituted house is still in the process of getting full shape. Due to the mix-electoral system enshrined in the Interim Constitution of Nepal 2007, direct elections were held only for 240 out of 601 seats in the assembly. The government is to nominate 26 personalities to ensure that national figures, civil society activists and extremely marginalised groups get adequate representation. The rest – 335 in all – have been nominated by political parties in ratio of votes received by them on the basis of a list submitted to the Election Commission.
In elections for proportional representation (PR), the entire country was considered to be a single constituency where the electorate voted for the party of their choice rather than competing candidates. Parties faced a problem in deciding their nominees because the priority submitted to the Election Commission was not binding and they had to drop more names than they could accommodate in their share of the electoral support. For example, Nepali Congress, the party that bagged the most number of seats in the first past the post (FPTP) contest (105 out of 240), got to nominate only 91 out of 335 candidates it had listed for proportional representation (PR) based on votes it received. Those left out in the race have understandably created a ruckus in party forums.
The monarchist Rastriya Prajatantra Party Nepal (RPPN), Madheshi Janadhikar Forum Loktantrik (MJFL) and United Communist Party of Nepal (Maoist) – hereafter UCPN(M) – almost broke up due to disagreements over nominees. Leaders have been charged with misusing the PR list to pack the CA with spouses, in-laws, relatives and sundry hangers-on.
Once the CA-II has been fully constituted, the formation of a new government will be its first biggest challenge. The electorate has given a fractured mandate and the Big Two – the Nepali Congress and the Communist Party of Nepal (United Marxist-Leninist) or CPN(UML) – will have less than 200 seats each in the new assembly. Being political competitors, it is hard for them to collaborate but the rest of the house is too divided – 30 parties and a few independents – to enable them forge a coalition without each other. The UCPN(M) will be the third biggest party in the assembly. It is not large enough to help either of the Big Two form a government without each other but has enough numbers to create trouble if they fail to get their act together. The mantra of “consensus government” is more of a political necessity than a workable alternative.
Challenging Task
The formulation of a new Constitution is going to be as challenging as ever. Mainly due to fragmentation and personality clashes, the Madheshbadi (Terai-based) parties representing the people of the plains in southern Nepal have lost FPTP seats even though their share of votes remains more or less the same. Newly formed parties of indigenous Janjati groups have largely failed to electorally register their presence in any significant manner. Issues and agenda raised by them, however, continue to be relevant and enjoy popular support. The Big Two are likely to find that balancing aspirations of the marginalised groups with the assertions of traditionally dominant section of population is fraught with risks of confrontation.
Almost 16 small parties, including a breakaway faction of UCPN(M) that now calls itself CPN-Maoist and is better known as the “Dash Maoist”, boycotted CA-II elections claiming various political inconsistencies and pre-poll irregularities. Bringing them onboard for the formulation of a Constitution that enjoys widespread support is not going to be easy.
The conduct of elections too was not sufficiently inclusive. Citizenship certificates were made mandatory for those wishing to vote, but at least a quarter of all eligible voters, according to the recent census, are yet to receive the official document that establishes their status as Nepalese citizens. In order to make polls possible on time, electoral rolls were not updated but voter’s identity cards were issued to those who had registered with the Election Commission a year earlier. In addition to all these constraints, a very large number of voters – estimates vary between three and five million – who work in west Asia, Malaysia, and India had no way of casting their votes. One of the reasons behind a very high voter turnout – close to 80% – has to be the exclusionary conditions prior to elections.
Charges of pre-poll scheming and post-poll frauds are impossible to establish. However, parties that believe the conduct of the elections was less than fair can always raise the issue and undermine the legitimacy of CA-II. According to a last minute agreement between major parties, a parliamentary committee is to investigate all allegations of fraud. Its mere formation acknowledges the lack of consensus over the legitimacy of the process.
The advantage CA-II has over CA-I, the one that got dissolved a year ago due to arguably extrajudicial directives of the Supreme Court – is that the people in general seem to have very low expectations this time. The new assembly is tasked with the responsibility of formulating a new Constitution within a year. Thereafter, it will function as a normal parliament until the next general elections.
The fear remains that the almost half-a-century old aspiration of the Nepalese to have a Constitution promulgated by their own representatives may again remain unfulfilled. Meanwhile, the monarchist party advocating an end to secularism and reverting to a Hindu state – the RPPN – failed to win a single seat in FPTP but will be the fourth biggest party in CA-II as it managed to garner an impressive number of PR votes, specially from urban areas including the Kathmandu Valley.
Historic Baggage
For a country that remained virtually closed to the outside world until the early 1950s, Nepal boasts a vibrant record of pursuing political modernism. Upon his return from visiting England and France, Jang Bahadur Kunwar promulgated the first country code (Muluki Ain) of Nepal in 1854. Though said to have been inspired by the Napoleonic code that had impressed Jang for its effectiveness in running affairs of the state, Muluki Ain was in fact a compilation of traditional practices of Sanatan Dharma and injunctions of Hindu sages down the ages. The code indeed proved to be more useful than initially imagined: It helped the Rana family rule the country for over a century even as the Shahs were forced to remain titular heads of the kingdom.
The Ranarchy – a term used to denote the oligarchy of the Rana clan – felt challenged once the British, patrons of the family since Jang’s crucial help in crushing the Sepoy Mutiny of 1857, left south Asia in 1947 as Pakistan and India gained independence. The hereditary Premier Padma Shamsher sought and got the help of Jawaharlal Nehru in framing what can be called the first modern Constitution of Nepal in 1948. Feuds in the family led to the fall of Padma and the Government of Nepal Constitution, 1948 failed to get implemented.
After the fall of Ranarchy and the Shah Restoration in 1951, king Tribhuvan promised to hold Constituent Assembly elections and enacted an Interim Constitution. Tribhuvan died without delivering upon the pledge and the conspiratorial nature of politics in Kathmandu made sure that CA elections would never be held as long as the monarchy held sway. However, a constitutional drama carried on even as all state powers continued to emanate from the king, portrayed as an avatar of Vishnu and thus divinely ordained to rule the kingdom. Meanwhile, even the worldly manifestation of the “supreme lord” had to maintain the façade of modernity and king Mahendra as well as king Birendra promulgated constitutions through royal edicts, though mostly for the convenience of their courtiers.
Five amendments to the Interim Constitution of 1951 in almost as many years failed to ensure CA elections. Ultimately the “Constitution of Kingdom of Nepal” was enacted in 1958 at the behest of the king all over again. Among other specialists, the famous British educationist and constitutional expert Ivor Jennings had helped formulate the supreme law of the newly established democracy.
The Constitution of 1958 had sought to establish parliamentary practices modelled after the British convention of constitutional monarchy without realising that Nepal lacked the tradition to check the ambitions of a “god-king”. The parliamentary elections in 1959 gave a two-thirds majority to the Nepali Congress. Its leader and Prime Minister B P Koirala enjoyed immense popularity inside and outside the country. The Constitution failed to deter king Mahendra from staging a royal-military coup in the winter of 1960 when he imprisoned almost the entire cabinet including the premier, dissolved parliament, proscribed political parties, and ultimately abrogated the Constitution that he had promulgated himself.
In 1962, Mahendra proclaimed a Constitution that sought to institutionalise autocratic rule of the king in the name of the panchayat system modelled after the “basic democracy” of Ayub Khan in Pakistan and Sukarno’s guided democracy experiments in Indonesia. While constitutional monarchy had been the dream of the ousted regime as imagined by Ivor Jennings, Mahendra’s modernist US advisors sought to mould the king in the role of the chief executive, though hereditary rather than elected, and unchecked by any constitutional agency.
The third amendment of the panchayat Constitution after the historic referendum in 1980 amounted to almost a re-enactment of the supreme law, as king Birendra discarded indirect polls through the electoral college and embraced the idea of general elections. Political parties continued to be proscribed, which made the entire exercise of elections for the national assembly rather meaningless.
The People’s Movement (Jan Andolan-I) in 1990 led to the restoration of multiparty democracy but the king continued to exercise influence much beyond what is usually expected of a constitutional monarch in a parliamentary democracy. History repeated itself when Gyanendra – declared the new ruler after king Birendra and his entire nuclear family were tragically decimated in the mysterious Narayanhiti Palace massacre on 1 June 2001 – staged yet another royal-military coup and assumed all state powers on 1 February 2004. His “creeping coup” since the conspiratorial dissolution of parliament in May 2002 had already disrupted the constitutional order. Apart from other things, it forced the Maoists and votaries of parliamentary democracy to come together. In the end, it was the People’s Uprising of 2006 (Jan Andolan-II) that ensured the enactment of an Interim Constitution which sought to institutionalise a republic through an elected Constituent Assembly.
It had taken nearly six decades from the day Constituent Assembly elections were promised to hold one, but as soon as it convened, the institution of monarchy was consigned to the pages of history. The Constituent Assembly elected in 2008 – referred as CA-I after the formation of CA-II – too could not deliver a new Constitution despite its term being repeatedly extended. What it did, however, was establish precedence that only elected representatives of the people were empowered to take decisions that affected the future of the country.
Challenges Ahead
The formation of CA-II is in final stages. The electorate has done its job. Despite making a mess of the process and giving the PR system a bad name, political parties too have completed their task and submitted the final list of nominees to the Election Commission. The Election Commission has also forwarded the roll of winners to the office of the president of the republic. The row now is who gets to call the first meeting of the second Constituent Assembly.
The Interim Constitution of 2006 had given the task of declaring Nepal a federal democratic republic to the CA-I and hence entrusted the prime minister with the responsibility of calling the first meeting of the elected assembly as head of state as well as the head of government. The office of President Rambaran Yadav thinks that it was an exceptional situation and the country should now revert to the established practice of the head of state calling the inaugural assembly of parliament. The chairman of the interim election council (and the former caretaker prime minister till the CA elections) Khil Raj Regmi considers it to be his privilege to convene the House for which he helped conduct elections. This disagreement may look minor, but it is a pointer towards possible conflicts between the head of state (however “ceremonial”) and the head of government (regardless of its nature – elected, selected or appointed on an ad hoc basis such as the incumbent one) in a newly democratising country.
The formation of the government is fraught with inherent dangers of intra- and inter-party conflicts of a hung assembly. The risk of instability is multiplied considering the fact that Nepal is a fragmented society with inter-community relations full of mutual suspicions sometimes bordering on enmity. The dominant group – primarily from Bahun and Chhetri castes of the Hindu-fold speaking Nepali language and sticking to a male-dominated social order – control all levers of power. They have an overwhelming presence in national life, and the Bahun-Chhetris that together constitute slightly over one-fourth of population occupy three-fourths of all key posts in the bureaucracy, security forces, financial institutions, courts, media, academia and the non-governmental organisation-sector. With CA-II too firmly under their grip, there is a justifiable fear among the marginalised that the progressive agenda may lose steam in the process of framing the Constitution. Initial symptoms are not very encouraging.
The PR process was adopted to ensure the participation of the marginalised and the externalised communities so that those social groups that were incapable of competing in the FPTP process due to various reasons would get an opportunity through the ladder of political parties. The very same parties that misused the system most to pack the assembly with their favourites from family, caste, clan, and friendly business communities are now calling the electoral system flawed. Akin to giving a dog bad name before shooting it, the risk is now high that the PR process will be downgraded even if not done away with in the new Constitution. That, however, depends upon what kind of Constitution is made within the stipulated period.
Leading politicians of the Big Two have repeatedly insisted that CA was not their political priority. One of the first statements after the declaration of CA results of Madhav Kumar Nepal, an influential politician of the establishmentarian CPN(UML) and former prime minister, was that the Constitution of 1990 was an ideal document. There is a valid apprehension that the same statute that sought to institutionalise a unitary government and an exclusionary society will be revived all over again. While there is little risk of a resurrection of the monarchy, the agenda of inclusion, federalism and welfare state may fall by the wayside if the Big Two manage to have their way. Together they command almost two-thirds majority in the new House and with the prodding of their core constituency, which consists mainly of the army, the bureaucracy, and the courts (ABC), they can decide to institutionalise the control of the permanent establishment of Nepal over the polity and society of the country.
There is a reasonable concern that elections for local government units have not taken place in the country for over a decade. However, the clamour for its elections at this juncture appear conspiratorial as the form of federalism has yet to be incorporated in the Constitution. The Interim Constitution does call Nepal a “federal democratic republic”, but that is more a statement of intent rather than reality. The formation of local government units before the promulgation of a new Constitution may undermine the agenda of federalism.
The CA-II results have energised parliamentary parties so much that they have totally forgotten the outstanding agenda of the Comprehensive Peace Agreement signed between the then insurgent group, the Maoists, and other prominent political parties of the time. Apart from restructuring of the state, parliamentary parties are yet to reform themselves. Maoist combatants have been “managed”, but nobody even talks about democratisation – right-sizing, civilian control and professionalisation – of the Nepal army. Part of the clout associated with the office of the president probably emanates from the head of state being the supreme commander-in-chief of the army. With enfeebled civilian control and a weak ministry of defence, the army often manages to have its way just as it did during the monarchical era.
The “permanent establishment” is likely to assert itself through the CA-II, but the pressure of the electorate for progressive changes is unlikely to go away. A large number of Madheshis have been elected through the Nepali Congress. Their political career will be in jeopardy if they vacillate from their commitment to federalism based on identity and feasibility, vague terms, but with huge emotive appeal in externalised communities such as Madheshis and Janjatis. Even though reduced in numbers, Madheshbadi parties do not lack the clout to keep the issue of Madheshis’ social and political dignity alive.
The UCPN(M) will have to get its house in order to remain an effective force in Nepalese politics. However, should they fail; the “Dash Maoists” are waiting in the wings to raise issues of economic justice from the streets with renewed vigour. Similarly, the return to a Hindu order is likely to be resisted by marginalised communities even if politicians were to fall for the support of the dominant groups.
It is not difficult to see that the pendulum of politics has swung slightly rightwards, but it is unstable for the very same reason: the possibility of a movement towards the left-of-the-centre again is alive as long as the machine remains functional.
A lot will depend upon geopolitical actors as well. The Chinese have heightened their level of engagement in Nepal as they look for a greater presence and role in south Asia. The US has been a close “sky neighbour” of land-locked Nepal at least since the days of Vietnam war. India has continued to play a crucial role at decisive moments of history. It can be assumed that they too would be unwilling to let the “permanent establishment” get away with a Constitution that merely seeks to legitimise the status quo.
The risk with the state of “controlled instability” is that it may get out of control without warning. That realisation may deter the “permanent establishment” from hijacking the CA-II on the basis of their brute majority in the new legislature. However, should the need arise, Nepalese people have repeatedly shown that they are ready to hit the streets at the slightest hint of political deceit. Principles and goals set by CA-I can perhaps be diluted in the changed circumstances, but it will be impossible to do away with them altogether and institutionalise the old unitary and exclusionary order, even under the pretext of national unity and integrity.
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