Nepal’s constitutional transition and uncertain political future

Author: Sagar Prasai, The Asia Foundation

Around midnight on 27 May, when most Nepalis were waiting for the new constitution to be unveiled, Prime Minister Baburam Bhattarai announced a fresh election for 22 November 2012 from a hurriedly put-together press conference at his residence.

With that announcement, Nepal’s Constituent Assembly (CA) — elected four years ago specifically to draft a new constitution — ended its tenure without even a draft.

It was only around 3pm earlier that day that TV channels in Kathmandu were busy announcing a breakthrough in the talks, raising hope of a new constitution and perhaps an end to Nepal’s four years of transitional instability. By about 10pm, the TV tickers had started to change their tack, and by midnight it was clear that the CA process had burnt about US$100 million of public funds and wasted four years of deliberation.

What exactly happened between 3pm and 10pm is still murky, and the political motive behind the snap poll announced by the prime minister remains unclear. For now, Nepali politics is embroiled in accusations of blame.

What we do know is that the big issue is federalism. The political demand for federalism in Nepal has come from a long-standing aspiration for self-governance in regions outside of Kathmandu. From their standpoint the Nepali state is seen as a distant and unresponsive authority that has historically failed to recognise the ethnic diversity of the country in a politically meaningful manner. These aspirations have been politically articulated and electorally consolidated by different geographic and ethnic constituencies as well as identity movements in Nepal. The Unified Communist Party of Nepal (Maoist) (UCPNM) and the larger parties from the Terai (the grasslands at the foot of the Himalayas) have understood and electorally capitalised on the political undercurrent of these identity movements much more effectively than the older national parties such as the Nepali Congress (NC) and the Unified Marxist-Leninists (UML). The political rewards of federalism have been unequal for Nepali political parties for some time, with polarised positions on federalism persisting until the CA’s dying moments. Whether the divergence on this issue alone motivated the UCPNM prime minister to allow the CA to dissolve is another story.

Determining the basis of federalism in Nepal has been a contentious process from the outset. The reality is that Nepal’s ethnic mix and settlement pattern is not amenable to an ethnic or linguistic division of provinces. Analyses show that no matter how the boundaries are drawn it is impossible to produce an ethnic majority in any province, even with significant gerrymandering. And resorting to an all-out carving of the state would result in provinces too small to remain economically viable. Despite this reality, the political demand of many of the larger ethnic groups in Nepal has been to create single-identity ethnic provinces. The UCPNM and the regional parties are determined to appease seven of these large ethnic groups in order to consolidate their own electoral prospects in the post-constitutional elections. The NC and UML too sense an electoral base ready to be captured among other ethnic groups beyond the seven who are opposed to single-identity provinces. From the parties’ point of view, in a country with 103 recognised ethnic groups, the political field is highly fertile if the game is played right.

Taking decisions on federalism had become especially difficult for parties in the run up to the 27 May deadline. From about early May, a multi-nucleated political contestation among those demanding single-identity provinces, those rejecting single-identity provinces, those demanding large geographic provinces, those demanding smaller linguistic divisions and those opposing federalism had started in earnest. All across Nepal there were demonstrations and bandhs (general shutdown). Over the last two weeks Kathmandu itself was under gripping bandhs called by those opposing and supporting single-identity provinces. There were no smart win–win solutions available as giving in to one meant denying the other. In the end parties decided not to decide.

Now, the abrupt call for an election has ended any possibility of a shorter, less-expensive and politically acceptable alternative to the CA. But the announcement of the election itself has raised several constitutional and political questions. The interim constitution never intended to have a re-elected CA beyond its tenure; constitutionally, there is no basis for holding a CA election for the second time. What, for instance, should be the tenure of the re-elected CA? Who gets to determine it?

A Supreme Court verdict that disallowed further extension of the CA recommended seeking a fresh mandate if the CA failed to deliver. The prime minister has taken that as the basis for announcing a fresh election; but after expiry of the CA’s tenure there are no legislative or constitutional assemblies left to endorse this decision. A number of parties, including the NC and UML, have already rejected the call for elections questioning its legality and political relevance. A faction leader within the UCPNM, Kiran Baidya — who supposedly holds about 100 Members of the Constituent Assembly in his grip — has asked the prime minister to resign and rescind his announcement of the election. The president in Nepal is a ceremonial one, with limited ability to intervene and provide a political alternative to election. The parties too cannot legally remove the prime minister without an election.

What happens next is difficult to predict. The prime minister might not be able to conduct the election as his majority in Parliament appears to be gradually defecting to the other side, as recent developments within the Maoist party suggest. The Supreme Court may be able to block the election on technical grounds but will not be able to give a political solution to the crisis. In the end, the parties have to come together again, and find a way to stitch together a national government and constitution. The prospect of Nepal’s constitution being written by an all-inclusive, 601-member, elected Constituent Assembly, however, appears to have been lost forever.

Sagar Prasai is the Deputy Country Representative for Nepal at The Asia Foundation.

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