By Fakir Mohan Pradhan*
In a historical step forward, Nepal’s second Constituent Assembly (CA) endorsed “Nepal’s Constitution” with overwhelming two-thirds majority on September 16, 2015. The Constitution came into effect after President Ram Baran Yadav announced its commencement at 17:00 hrs on September 20, 2015, during the last meeting of the CA.
Of 598 existing CA members in the 601-member Assembly, 532 took part in the voting; of those present, 507 voted in support of the Constitution, while 25 members from the Rastriya Prajatantra Party-Nepal voted against it. The Chairman of the CA, Subash Chandra Nembang announcing the result of the voting, stated, “I declare that Nepal’s Constitution has been endorsed by two-thirds majority.”
The Madhesi parties from Nepal’s Tarai region, which boycotted the Constitution writing process a few weeks ago, did not participate in the voting. As the copies of the Constitution were kept in the CA for signing by the members, 537 members had already signed, including all the 532 members who participated in the process and the CA Chair Nembang, and later, four other members who were absent during the voting process. 61 members, including 58 from Tarai-based parties, two from the Nepali Congress, and one independent member, have not signed the historic document in protest.
The final voting was preceded by clause-by-clause approvals, each by a two-thirds majority. As parties could not agree on many issues, the desired consensus process was given a go-by in favour of a majority voting process, as enshrined in the Interim Constitution.
The devastating earth-quake that visited Nepal in April 2015 seems to have played its part in bringing a sense of urgency among political parties to finish up the task, as delays in the process were hampering the reconstruction process. Significantly, this time around, three out of four major political forces in Nepal came on board, leaving the Tarai-based Madhesi parties in the cold, and passed the Constitution in the CA with overwhelming majority. In protest, the Tarai-based parties have declared September 20 a “Black Day”.
As new Constitution with 308 articles, 35 parts and nine schedules comes into force, the Constitution making function of the second CA will cease, and it will continue as the Legislature-Parliament for the remaining period of its original term of five years since its swearing-in on January 21, 2014. As the Legislature-Parliament has been prorogued, the new Prime Minister would be elected within seven days of the commencement of the session. Moreover, the Legislature-Parliament will have to elect the President and the Vice-President within 30 days and the Speaker and the Deputy-Speaker within 20 days of the start of the new House session.
It has been more than seven years since the Constitution drafting process started with the election of the first CA in May 2008, following a 10 year insurgency by the Maoists that ended with the Comprehensive Peace Agreement of 2006. While the first CA failed to accomplish its task, the second has successfully delivered a Constitution.
As the Federal Democratic Republic of Nepal gears up for a new dawn, it is suffering some painful birth pangs, with protests against the Constitution turning violent, and at least 40 persons, including 11 security personnel, killed in the weeks running up to the final endorsement. At heart of the conflict is the question of federalism that had, in fact, tripped up the first CA. This time around the deadlock was broken with the Maoists agreeing to a seven province model, with the names and boundaries to be decided later. The names will be decoded by the eventual provinces while the boundaries will be decided by a commission. The Madhesis and Tharus are highly dissatisfied with the seven province model, arguing that it would perpetuate existing fault-lines that marginalise the Madhesis and other minority communities.
Ethnic communities are also aggrieved that, under the new Constitution, a smaller percentage of lawmakers will now be elected by proportional representation – 45 per cent, as compared to 58 per cent under the Interim Constitution.
Some ethnic communities are also unhappy at the proposed boundaries of the new provinces, although these are subject to future amendment. In western Terai, the indigenous Tharus are chafing at the prospect of being split in two and forced to share their provinces with the Hill Districts that have historically dominated the country’s politics.
Another controversy relates to the provision in the new Constitution that if a Nepali woman marries a foreign man, their children cannot assume Nepali citizenship unless the man first does so; whereas if the father is Nepali, his children can also be Nepali regardless of the wife’s nationality. The Madhesi communities, ethnically and socially close to Indians just across the border, say the new citizenship measures will disproportionately affect them because there are many cross-border marriages.
The Madhesis feel the Constitution has betrayed their aspirations, which had been taken note of by all parties during the Madhesi agitation of 2006-07, and argue that it was their agitation that ensured that Nepal would be a federal State. The Maoists had, at that juncture, strongly supported their position, endorsing the desires of the long-marginalised plains communities under the hegemony of the Hill elites. The shock of the breaking of ranks by the Maoists is yet to be absorbed by the plains’ communities.
Meanwhile, on September 19, 2015, the three principal parties jointly appealed to Madhes-centric political forces to stop their protests and join the Constitution commencement ceremony. Organising a press conference at the PM’s residence in Baluwatar in the afternoon, Prime Minister and Nepali Congress President Sushil Koirala, Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) Chairman K.P. Sharma Oli and Unified Communist Party of Nepal-Maoist (UCPN-M) Chairman Pushpa Kamal Dahal reasoned that protests were now unnecessary as the new Constitution has enough space for amendment to address their concerns. Speaking at the meet, Dahal contended that the Madhesi parties did not have any reason to continue their protests as the top leaders of three major parties had already pledged to delineate constituencies on the basis of population, and demarcate federal provinces on the basis of recommendation by a yet-to-be-formed Federal Commission. Dahal argued, “The issue of demarcation is never finalised at once everywhere… it is not good to object to the entire Constitution just because of demarcation.”
Nepal is an extraordinary example of transition, from an enveloping Maoist insurgency to a democratic Constitution, in the process demobilizing or absorbing the rebel fighters into the Nepal Army, and its leaders into democratic politics. The protests in the Tarai, however, have the potential to aggravate instability, though the Tarai-based parties have lost some of their popular base, as was evident in their poor performance in the second CA elections. Nevertheless, unless the perception of betrayal and a raw deal are dispelled, the temptation to radical politics and disruption will persist.
* Fakir Mohan Pradhan
Research Associate, Institute for Conflict Management