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Nepal's Constitution (I): Evolution Not Revolution

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Nepal's Constitution (I): Evolution Not Revolution NEPAL’S CONSTITUTION (I): EVOLUTION NOT REVOLUTION Asia Report N°233 – 27 August 2012 TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS ................................................. i I. INTRODUCTION ............................................................................................................. 1 II. STEPPING OFF THE EDGE .......................................................................................... 3 A. FRUSTRATED IN FEDERALISM ...................................................................................................... 3 1. The sticking points ....................................................................................................................... 3 2. Bogeymen .................................................................................................................................... 5 3. Missing all the signs ..................................................................................................................... 6 4. The final weeks of the assembly .................................................................................................. 8 5. The mood outside Kathmandu ................................................................................................... 10 B. WHAT HAPPENED ON 27 MAY ................................................................................................... 12 1. Talks ........................................................................................................................................... 12 2. Breakdown ................................................................................................................................. 13 3. Emergency ................................................................................................................................. 15 4. Election ...................................................................................................................................... 16 III. NEXT MOVES ................................................................................................................ 17 A. REVIVING THE ASSEMBLY ......................................................................................................... 18 B. THE ELECTION OPTION .............................................................................................................. 19 1. Elections are democratic and (relatively) legal .......................................................................... 20 2. Elections will be violent and will not change things.................................................................. 20 3. Election challenges .................................................................................................................... 21 C. MAKING NEGOTIATIONS BETTER ............................................................................................... 22 1. Protecting Constituent Assembly functions ............................................................................... 22 2. Improving broader negotiations ................................................................................................. 23 D. OUTSTANDING ISSUES ................................................................................................................ 23 E. GAME CHANGERS ...................................................................................................................... 24 IV. THE INTERNATIONAL COMMUNITY .................................................................... 27 A. INDIA AND CHINA ...................................................................................................................... 27 B. OTHER INTERNATIONAL PLAYERS ............................................................................................. 28 V. CONCLUSION ................................................................................................................ 30 APPENDICES A. MAP OF NEPAL ................................................................................................................................ 31 B. GLOSSARY ....................................................................................................................................... 32 C. ABOUT THE INTERNATIONAL CRISIS GROUP .................................................................................... 34 D. CRISIS GROUP REPORTS AND BRIEFINGS ON ASIA SINCE 2009 ......................................................... 35 E. CRISIS GROUP BOARD OF TRUSTEES ................................................................................................ 37 Asia Report N°233 27 August 2012 NEPAL’S CONSTITUTION (I): EVOLUTION NOT REVOLUTION EXECUTIVE SUMMARY AND RECOMMENDATIONS Nepal’s peace process was to end with a new constitution. ties representing Madhesi populations of the southern Yet, after four years of delays and disputes, the country’s Tarai belt, were the largest and fourth largest in the as- main political parties were unable to agree on federalism, sembly, respectively. They coalesced with a cross-party a core demand of large constituencies. On 27 May 2012, the caucus of assembly members from janajati groups (the term of the Constituent Assembly, which also served as par- numerous ethnic groups outside the Hindu caste system liament, ended without the new constitution being com- who claim distinct languages, cultures and sometimes his- pleted. The parties must now decide what to do next: hold torical homelands) into a powerful pro-federalism alli- an election for a new assembly or revive the last one. This ance, with connections to social movements. They say the will be hard. Obduracy on federalism, bickering over a uni- agenda should be set by the majority, namely themselves. ty government, a changing political landscape and com- munal polarisation make for complex negotiations, amid Public discussions have focused on whether “ethnic states” a dangerous legislative vacuum. The parties must assess should be established. Sceptics of federalism sometimes what went wrong and significantly revise the composition define these as mono-ethnic entities where populations and design of negotiations, or risk positions hardening other than the majority ethnicity would be unwelcome. across the political spectrum. Talks and decision-making Yet discussions in the assembly made it clear that no group need to be transparent and inclusive, and leaders more ac- would enjoy a majority in any state. Nepal’s extraordinary countable. The public needs much better information. None ethnic diversity simply does not allow this. Demands for of this will necessarily mend the deep social rifts, but it preferential political rights to be granted to the dominant would reduce space for extremists and provocateurs. ethnic groups in each state were ceded two years ago. Mad- hesi, janajati and Maoist actors do, however, care about Until there is a new constitution, Nepal is guided by the how many states there will be, naming rights, and bound- 2007 Interim Constitution and the 2006 Comprehensive aries that give them a slight demographic and possibly Peace Agreement (CPA), which provides for the state to electoral edge. Madhesi parties also focus on inclusion in be restructured to address entrenched inequalities, often state institutions. rooted in discrimination based on identity. But federalism is not only about devolution or quotas. For groups that feel The assembly ended because leaders of all parties, new and their culture, history or language have been sidelined by a old alike, made secretive, top-down decisions. They were unitary state-sponsored Nepali identity, it is also about dismissive of their own members and never explained the dignity and recognition. A standoff has emerged between issues at stake to the public, relying instead on fear-mon- upper class and dominant hill-origin upper-caste popula- gering and extreme rhetoric. Throughout the peace process, tions on the one hand, and ethnic communities often de- decisions on the main points, whether the constitution or scribed as historically marginalised on the other. the former Maoist army, have been hostage to bargains on government formation, enmeshing power sharing with sub- These divisions map clearly on to party politics. The tradi- stantive issues. tional parties are the Nepali Congress and the Communist Party of Nepal (Unified Marxist-Leninist), commonly The peace process has relied extensively on a tired idea of known as UML, which emerged as the second and third consensus between the parties. Until the constitution was largest parties in the 2008 elections to the Constituent completed, the main parties were to agree on all major Assembly. These parties, currently in the opposition, are decisions to ensure broad buy-in. This sometimes prevent- sceptical about acknowledging identity in a federal mod- ed the worst case scenario, but it also devalued democratic el. They have been encouraged by an upper-class, upper- participation. Instead of discussions in the assembly on caste backlash against the new pro-federal and pro-identity real issues, senior leaders cobbled together inadequate or politics order. The two main forces in the ruling coalition, unrealistic deals purportedly to save the peace process, the Maoist party and the Madhesi Morcha, a front of par- but often about their personal futures or getting a share of Nepal’s Constitution (I): Evolution Not Revolution Crisis Group Asia Report N°233, 27 August 2012 Page ii government. Deep disagreements
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