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#4914, 19 September 2015

Himalayan Frontier

Nepalís New Constitution: Instrument towards Peace or Catalyst to Conflict?
Pramod Jaiswal
Independent Analyst on South Asian affairs, and Nepal expert

On 17 September 2015, amidst the curfew and violence that erupted in southern Nepal due to protests organised by the Tharu and Madhesi ethnic communities against Nepal’s constitution, the members of the country’s Constituent Assembly (CA) voted in favour of the new statute. All is set for President Ram Baran Yadav to promulgate the new constitution on 20 September 2015 in a ceremony that will be attended by the members of parliament, cabinet members, members of constitutional bodies, high-ranking officers of Nepal’s security forces, and members of the diplomatic community.

The long wait for the finalisation of the new constitution is over, but it has raised some pertinent questions:  How long will this constitution last for? Does it truly reflect the aspirations of the people? Or will it be a catalyst for fresh rounds of violence and conflict in the country? Is the new constitution an inclusive charter like the democratically elected CA or is it just an elitist exclusive document?

Making of Constitution 
The historical journey till the promulgation of the new constitution has not been easy. Nepal has had seven constitutions (including the interim constitution) in the past six decades, but this is the first time a constitution has been passed by a properly elected CA. It was one of the demands of the Maoists, who had waged the decade-long armed struggle against the state, for joining the peace process. The first CA was elected in 2008 was dissolved in 2012 as it failed to deliver the constitution despite several postponements due to bitter differences among political parties on matters of federalism, government, judiciary and elections.

The second CA was elected in 2013 and political parties pledged to deliver the constitution in one year. Federalism remained the bone of contention but the 16 point agreement was a breakthrough, resulting in the present constitution. In the 16 point agreement, top leaders of the major political parties represented in the CA – the Nepali Congress, the Communist Party of Nepal – Unified Marxist Leninist, the Unified Communist Party of Nepal (Maoist) and the Madhesi People’s Rights Forum (Democratic) – agreed to federate the country into eight provinces and promulgate a constitution. The issue of names was left to be decided later by a two-third majority in the state assemblies of the respective provinces. Likewise, leaders agreed to form a Federal Commission, which will have six months to delineate the boundaries of the federal provinces.

With disagreements from the Madhesi parties, they agreed to demarcate the boundaries of the federal provinces. Surprisingly, they formed six provinces that were later increased to seven. Yet, it failed to satisfy the Tharus and the Madhesis. In fact, it instigated violent protests around the country that claimed over 40 lives in few weeks.

The new constitution embraces the principles of republicanism, federalism and secularism. However, commentators like CK Lal challenge the secular flavour of the new constitution. Lal says, “Nepal’s Constituent Assembly claims that it will remain a secular state, but also admits that ‘secularism means protection of Sanatana Dharma’. Hence, Nepal has become a Hindu State through the backdoor.” At he same time, Madhesis reject the new Constitution as being non-inclusive.

According to the new constitution, Nepal will have a parliamentary form of government with a president elected by collegia of central legislative houses, the Legislative Parliament and the National Assembly, as well as the provincial legislative bodies. The prime minister will be elected by the Legislative Parliament, based on a majority. The Constitutional Council will nominate the Chief Justice, heads, and members of the Constitutional Commissions. The Judicial Council nominates the judges of the Supreme, High, and District Courts, thus making the judicial system is an integrated one.

Challenges in Implementation 
Promulgating the Constitution was a herculean task by the CA and the implementation will be equally challenging. The core aim of formulating the new constitution via the CA was to undo the concentrations of power — political, social and economic — to make the Nepalese society inclusive and democratic in the widest sense. However, the Madheshi, the Janajatis, women and the marginalised communities have outright refused to accept the new constitution.

The Madheshi and Tharus are demanding provisions for proportionate inclusion of under-represented groups in the state organs, constituency delimitation on the basis of population to ensure political representation of the Tarai, and the revision of federal boundaries. Women representative groups perceive the new Constitution as regressive, for it adopts discriminatory citizenship laws. Simultaneously, there is an emerging voice towards the demand for an autonomous Limbuwan province by the Janajatis of Eastern Nepal.

The process that was already challenged by the splinter groups of Maoists has received the support of the Tharus, the Madhesi and women representatives. Interestingly, the only Madhesi party that was initially a signatory of the 16 point agreement also withdrew its support.

Therefore, Nepal’s new constitution fails to arouse the enthusiasm it could have otherwise generated had it had been promulgated with the support of all the major stakeholders. It is not wrong to posit that it might in fact trigger a fresh round of protests by the Tharus, the Madeshi and the other ethnic groups who have been demanding provinces based on identity.

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