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Ever since 2006, Nepal’s political parties have attempted to reach an agreement on a new national constitution. Divided over the role of religion in government, whether the nation’s 239-year-old monarchy should be restored, political boundaries, and the rights of ethnic minorities, the nation saw little movement on a lasting constitutional draft. However, a 7.8-magnitude earthquake in April literally shook the country’s major parties out of their prolonged gridlock. On Sunday, supporters of a new constitution gathered in the capital of Kathmandu to celebrate, but reception across the country was mixed. Ethnic minorities in Nepal allege that the constitution denies them adequate representation and women’s rights activists allege that the document rolls back some of the protections women enjoyed in previous governments. Analysts agree that Nepal’s new constitution may give its federal authorities the ability to finally govern the country and fix the problems that ail one of the world’s poorest nations. Nevertheless, if federal officials are not able to acquire adequate buy-in from the nation’s various ethnic groups, the chances of achieving lasting change are minimal.
This topic brief will provide some historical background on Nepal’s political intrigues leading up to the new constitution, break down the ways that the constitution will change Nepal, and then analyze arguments that have been made against the document and how that may usher in a new period of instability in one of South Asia’s most unstable states.
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The Road to the New Constitution
Nepal has historically been a nation torn by conflict. Although it was not conquered by a European power during the height of imperialism, the nation’s multiplicity of ethnic groups, landlocked location, and high poverty rate created a cauldron of instability. The nation was once ruled by a monarchy, which ruled for 239 years before being abolished by a constituent assembly in 2008. Then-King Gyanendra was deposed after taking over following the killing of the existing king and eight family members in 2001. His removal was seen as a victory for the nation’s Maoist forces, who had been fighting the Nepalese government since 1996 to establish a “people’s republic.” The Kathmandu Post writes on September 20 that even the ending of that civil war, which took place after the signing of a Comprehensive Peace Agreement (CPA) in 2006, did not immediately produce a constitution that Maoists hoped would end discrimination through “progressive restructuring of the state.” A constituent assembly did meet to draft a new constitution, but disputes arose over the treatment of ethnic minorities, the role of religion in public life, and the boundaries of new political districts. In 2012, the Nepali Supreme Court voided the assembly, but a new one convened in November 2013 and that is the body that eventually reached agreement on the recent constitutional draft.
Extempers should take note that this is not Nepal’s first constitution. In fact, according to the Kathmandu Post article previously cited, the new constitution will be the nation’s sixth since democracy was established in 1950. It had long been the hope of Nepal’s democrats that a constitution would be drafted by the public, but these dreams were dashed on several occasions. For example, in 1949 Nepal’s Congress Party called for an elected constituent assembly and then-King Tribhuvan called for an elected assembly to draft a new constitution the following year. However, this agenda was sabotaged by Prime Minister Tanak Prasad Acharya in 1956 and the monarchy drafted constitutions in 1959 and 1960. The most recent non-interim constitution was put together in 1990, but this draft was done via the Nepali Congress and it was soon put in jeopardy by the Maoist rebellion of 1996. Therefore, this is the first Nepali constitution to be directly formulated by the people of Nepal.
The reason that Nepal was able to get this constitutional draft through the Constituent Assembly is that the nation’s three largest parties – the Nepali Congress Party, the Communist Party of Nepal, and the Unified Communist Party of Nepal (Maoist) – decided to hash out compromises and push the constitution over the objection of a very vocal minority. The Hindu writes on September 21 that a 7.8-magnitude earthquake that hit Nepal earlier this year and killed more than 9,000 people is what galvanized the party’s to finally work together. Deutsche Welle points out on September 18 that a new government was necessary so that the nation could better channel relief to earthquake victims and responsibly handle a $4 billion relief budget. The parties were also responding to growing frustration among the public, most of whom favor a government that is stable and can handle the nation’s pressing economic problems.
The new constitution passed the Constituent Assembly by a vote of 507-25, with sixty-six abstentions. Those voting against the charter, according to Deutsche Welle, were Hindu extremists that wanted the new constitution to make Nepal a Hindu nation. CNN explains on September 20 that 80% of Nepal is Hindu, making the country the home of the world’s largest Hindu majority, but a core demand of leftists was for Nepal to be a secular nation and the constitution makes this a reality. The sixty-six abstentions came from ethnic minority groups such as the Madhesh and Tharu, who reside in Southern Nepal. These groups think that the constitution dilutes their power in a new parliament and want more federal states to be created. One of the fears is that if the concerns of these minorities are not met that the constitution will fail to bring Nepal some much needed political stability.
Constitutional Framework
The new constitution of Nepal, which includes more than 300 articles, does not bring back the nation’s monarchy, keeps the nation as a secular state, and establishes a weak executive at the expense of a national parliament. According to The New York Times on September 20, the constitution allows for 60% of the seats in the lower house of parliament to be elected via direct election. The other 40% of seats will be allocated on the basis of proportional representation. Deutsche Welle explains that the Nepali Parliament will elect the Nepali President, who will hold the post for five years and will occupy a largely ceremonial role. A ministerial council that is elected by the people will hold vital executive powers to assist the president and parliament.
The Kathmandu Post in a separate article on September 20 notes that one of the aims of the writers of the constitution was to form a republican, federal, and proportional political system. Nepal has typically had a unitary system of government, with powers concentrated in the hands of political officials in Kathmandu. The Asia Times writes on September 20 that a high-level commission will finalize the boundaries of seven provinces that will make up the new federalized Nepal within the next year. One of the reasons that the drafters of the constitution sought a federal system was to ease the anxieties of the nation’s various ethnic groups, all of whom make Nepal one of the most diverse societies in the world. The Kathmandu Post adds that local democracy is promised in the constitution by setting up provincial and local legislatures, although details about the establishment of these bodies are still unclear.
Another aim of the constitution’s drafters was to end discrimination in Nepali society and to promote human rights. The preamble to the constitution calls for the ending of all forms of discrimination and oppression, with The Hindu writing on September 21 that Nepal’s constitution follows an “entitlement approach” to rights by guaranteeing rights to food, education, and protection from environmental degradation. There is also a portion of the constitution that provides protections from human trafficking, as the anti-human trafficking movement is significant in Nepal. The Guardian explains on September 20 that gay rights activists have welcomed the constitution, noting that it respects their identity, rights, participation, and inclusion in the nation’s political community. These protections make Nepal’s new constitution one of the most progressive in the world, with The Hindu noting that it is reminiscent of South Africa’s post-apartheid constitution that calls for social and economic justice.
Tensions Over the Constitutional Draft
However, a constitution can guarantee anything it wants. The real question is whether those calls for justice are heeded by political officials and, more importantly, by the people of Nepal that will live under the constitution. No sooner had the Constituent Assembly voted in favor of the new document than ethnic minorities began protesting that it was anything but democratic. The Financial Times of London reveals on September 18 that forty-four people died in the days leading up to the constitution’s promulgation, including police officers who were lynched by angry mobs. The security situation in Kathmandu was very sensitive when celebrations were held last week, with The International Business Times on September 20 writing that the capital had a heavy police presence due to alleged bomb threats.
Most of the protests that are being waged against the constitution come from ethnic minorities in Southern Nepal who believe that the constitution discriminates against them. The Guardian explains that ethnic minorities are not happy that there will only be seven states, demanding bigger territories that have specific groups and more states that may be drawn along ethnic lines. The Constituent Assembly already gave into some of these demands, with the New York Times writing that six states were originally envisioned, but a seventh was granted to peoples of the Midwestern hills. The effect of this is that ethnic groups that live on the southern plains such as the Madhesi are now demanding that the same treatment be given to them. The Madhesi complaint is not necessarily unfounded, as CNN notes that their native area covers 20% of Nepal’s land, but houses more than 50% of the nation’s population. They allege that existing districting denies the status of a Madhesi and Tharu state, thereby not giving them proper representation in the new government. International Crisis Group on September 2 writes that politicians have created their own monster by making nearly forty agreements with various nationalities since 2007, some of which contradict each other. Politicians representing minorites have called for a national strike, an often utilized tactic by the country’s political groups over the last several decades. National Public Radio explains on September 10 that general strikes have typically harmed the Nepali economy, making it hard for urban residents to get access to consumer goods and manufactured products from India. These types of slowdowns have harmed Nepal’s economy over the years – USA Today points out on August 25 that daily shutdowns cost the country $20 million – something that is made worse by the fact that the country has three million people who are still homeless and desire employment after this year’s earthquake. Since the Madeshi represent one of the biggest nationalities in Nepal, if they are not won over to support the constitution then it could fail in the long-term.
Women’s rights activists have also voiced their concerns about the terms of the constitution. The biggest complaint stems from a provision in the constitution that does not allow Nepalese women who are single mothers to pass citizenship to their children. The constitution allows the children of Nepali men to become citizens, even if a man had children with a woman who is not Nepali, but Nepali women who marry foreign men cannot have those children become citizens immediately. According to Deutsche Welle, the authors of the constitution have justified this step by claiming that they do not want men from China and India – two nations that border Nepal – to marry Nepali women and cause unwanted population growth, which they construe as a national security threat. Citizenship issues matter a great deal in Nepal, as The Hindu explains that the nation has 800,000 to four million stateless peoples. Politicians that signed the constitution have responded to criticisms by saying that future amendments could deal with the issue and others note that the Nepali Constitutional Court may void this provision of the document in the future.
Lastly, the constitution does remain vague on some issues that need to be fixed for the sake of Nepal’s stability. First, as noted earlier in this brief, the constitution is unclear about how local governments are to be established, putting into question whether a future Nepali government will be committed to the principle of federalism. If it is not, then some of the tensions that have fueled Nepal’s political conflicts could resurface. Second, a Maoist demand for land reform has yet to be enacted. Maoists found a sizable following among Nepal’s landless workers in the civil war, but the constitution makes few provisions for land reform other than giving a broad statement of rights. And third, there are still questions about how a Truth and Reconciliation Commission will work, which is tasked with healing the wounds from the civil war.
In the meantime, China and the United States are lending tepid support to Nepal’s new constitution. The signs of political progress as embodied in the constitution are encouraging, but if the nation’s political parties do not solve the grievances of ethnic minorities in the south, Nepal may not find the political stability that is a necessary pretext for economic prosperity.