Nepal Constitutional Deadlock – South Asia Intelligence Review

By Anshuman Behera

Nepal is, once again, being pushed to the brink, as a political gridlock stalls the drafting of her new Constitution. With just three months to go before the May 28, 2010, deadline which had been imposed on the Constituent Assembly (CA), in May 2008, for the writing of the Constitution, there appears to have been little substantive development on a draft. As time runs out, and political polarizations harden, there seems little hope that the Constitution will be drafted in time. With the Unified Communist Party of Nepal – Maoist (UCPN-M) threatening to take to the streets if the deadline is not met, the ongoing impasse has the potential to undermine the fragile peace in this infant republic.

After the fall of the Monarchy, the Seven Party Alliances (SPA) had hammered out an agreement with the Maoists on the drafting of the Constitution. The first meeting of the CA was held on May 28, 2008, and 11 ‘thematic committees’ were allocated responsibilities to work on different components of the proposed Constitution. It is important note that the CA had been a standing demand of Nepal’s various political parties since 1950. It was, however, during the second (June 5, 2008) and third (June 11, 2008) meetings of the CA that the political parties started defining their own divergent stands on various issues, and a boycott drama commenced. Political parties, particularly the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML), the UCPN-M and the Nepali Congress (NC), amplified their disagreements on even the smallest possible issues.

In a unique process, Nepal’s CA did not engage constitutional experts to frame a preliminary draft of the provisions of the Constitution, with a view to subject this to focused discussions in the CA. The result has been a free floating process, largely of political posturing outside the formal constitution drafting process, which has allowed little headway to be made in over 18 months. Significantly, while violent disputes have dominated the political discourse on various elements of the projected constitutional structure, there has been no significant discussion on anything important relating to the draft Constitution since the third meeting of the CA on June 11, 2008, and till its 28th meeting on May 24, 2009. Indeed, between June 2008 and May 2009, the CA appeared to focus almost exclusively on discussions relating to the inclusion and resignation of CA members from different parties. It was only in its 28th meeting that the CA’s National Interest Preservation Committee (NIPC) presented its Concept Paper, outlining the basic contours of the proposed Constitution, to the Assembly. This development was, however, immediately undermined when one of the members of the NIPC articulated his opposition to the Concept Paper. As a result, the 29th meeting of the CA, held on May 27, 2009, was wrapped up with the formation of a 15-member ‘Concept Paper Discussion Committee’.

In what would appear to be a positive development, all 11 Thematic Committees had tabled their Reports by January 27, 2010, for discussion in the CA, preliminary to the final drafting process. However, according to CA Schedule 149, the Thematic Committees were supposed to table their preliminary reports by April 23, 2009, and party-wise discussions and the revision of the Reports were to be completed by January 21, 2010. On the original schedule, the Constitutional Drafting Committee was scheduled for ‘theoretical discussions’ on the Constitution Bill by February 23, 2010. There is now no possible hope that these schedules will be met.

It is the lack of consensus among the principal political parties that has brought things to the present pass. Each political party has sought to dominate the others, with the UCPN-M leading the race. The CA’s processes have been stalled or disrupted on numberless issues, some of grave significance, others no more than trivial. There were strong disagreements among the parties on the change of the National Flag. The CPN-UML and NC supported the continuance of the existing flag, while the UCPN-M and various regional parties sought a change. The process of the finalizing the National Flag took more than three months, between September 16, 2009, and December 2009. There have been persistent disagreements among the political parties over issues such as the National Bird, National Animal and National Flower. More intractable postures have undermined discussions on the weightier issues of governance, and particularly the proposed nature of the country’s Federal structure and the distribution of State power. Small but influential regional parties such as the Madhesi Janadhikar Forum (MJF) are demanding ‘one Madhes one Pradesh’, a single ‘Madhesi’ state with a ‘pan-Madhesi’ identity. The Tharu minority in the Madhes region is, however, against any structure that would block the entire Madhes region together.

The CPN-UML, the leader of the ruling coalition, has also repeatedly blocked the possibilities of consensual resolution, particularly with a belligerent rhetoric towards the Maoists. Thus, Prime Minister Madhav Kumar Nepal declared, recently, that “the Maoists would face the same fate of the Tamil Tigers of Sri Lanka if they continued to engage on violence and intimidation”, rhetoric that will not push discussions forward the next time his party sits across the party with the UCPN-M for discussions on the niceties of the Constitution. Worse, there is little evidence of political consensus within the CPN-UML itself, with party President, Jhala Nath Khanal, demanding Nepal’s resignation on February 19, 2010, for the Prime Minister’s failure to secure a consensus among the political parties for the smooth drafting of the Constitution.

Tensions over the absence of consensus on provisions of the Draft Constitution have been infinitely compounded by disruptive behavior outside the CA. While the debate on the proposed federal structure was going on in the CA, for instance, the Maoists, on November 25, 2009, unveiled their plan to declare 13 ‘Autonomous States’ based on ethnicity and region. Soon thereafter, on December 2, 2009, Prime Minister Nepal stated that the UCPN-M’s plan to declare autonomous federal states was against the Comprehensive Peace Agreement (CPA) and the Interim Constitution, and accused the Maoists of trying to undermine the CA at a time when political parties were holding discussions on State restructuring. Nevertheless, ignoring widespread national and international concerns on the issue, the UCPN-M announced the ‘formation’ of autonomous Kochila and Laimbuwan States on December 11. On December 13, the Prime Minister said the Maoist decision to declare federal States would invite political confrontation and urged the Maoists to withdraw their decision, if they wanted timely drafting of constitution. The Maoists, however, stood by their plan and declared another 11 Autonomous States – Kirat, Sherpa, Bher-Karnali, Tharuwan, Seti-Mahakali, Tamsaling, Newa, Bhote, Magarat, Tamuwan and Madhesh.

The Maoists also disrupted Parliamentary proceedings from May 6, 2009, through December 2009, including the proceedings of the CA, even as they continued with widespread intimidation and sporadic violence. There have been numberless instances of the UCPN-M and its youth wing, the Young Communist League (YCL), being involved in land grabs, extortion, disruption of development projects, and unruly political demonstrations. In one such incident, on December 29, 2009, UCPN-M cadres assaulted Federal, CA Affairs and Culture Minister Minendra Rijal with lathis (bamboo canes) in Udaypur District, as he was coming out of the NC District Party office. Maoist belligerence has variously encouraged and provoked other political groupings to adopt violent and intimidatory tactics to pursue their own political goals.

In a rare positive development, however, a High Level Political Mechanism (HLPM) was constituted, after a prolonged disruption by the Maoists of the CA, on January 8, 2010, to end the deadlock and to address various constitutional issues. Within hours, however, UCPN-M Chairman, Pushpa Kamal Dahal aka Prachanda, declared that his party would re-launch the ‘people’s war’ if the Constitution was not drafted on time – an eventuality that has receded from the realms of the possible. Worse, the Madhesi Janadhikar Forum-Loktantrik (MJF-L) has declared itself against the HLPM, claiming that the Mechanism has been instituted with the objective of furthering the interests of the larger political parties.

With just three months to go before the deadline for the Draft Constitution expires, the political deadlock seems to be worsening. None of the political parties in Nepal has demonstrated the sagacity to lead the country out of its protracted political and constitutional logjam. As the May 28, 2010 deadline approaches, Maoist belligerence appears to be escalating, and the country is once again at acute risk of a spiral into disorder and violence.

Anshuman Behera is a Research Assistant at the Institute for Conflict Management, which publishes the “South Asia Intelligence Review” of the South Asia Terrorism Portal. This article is reprinted with permission.