Nepal’s constitutional deal: significant milestone but short of a breakthrough

Recent devastating earthquakes in Nepal are seen as motivation behind a deal the four major parties made to move forward the long-drawn constitution writing process. However, many believe that the parties have used the pretext of the disaster to fulfill their shared interests that led to a compromise that misses the historic opportunity to unite the divided society of the South Asian nation.

This Monday, Nepal’s ruling parties have signed a 16-point agreement on the new constitution. The need for immediate reconstruction following the April 25 and May 12 earthquakes that ravaged the country added pressure on the party leaders to end almost a decade long constitutional stalemate. More than 8,700 people died in the two earthquakes, nearly half million houses were destroyed and thousands left without shelter. The deal will allow the parties to form a new government involving major parties amid criticism of of the current government’s ability to effectively respond to the earthquakes.

The deal means a long-awaited compromise between the ruling parties, the Nepali Congress and the Unified Marxist Leninist (UML,) and the opposition Maoists and Madhesi People’s Rights Forum – Democratic (MPRF-D). As per the agreement, the Federal Democratic Republican Nepal will have eight provinces formed on the basis of five elements of identity (ethnicity/community, language, culture, geographical/regional continuity and historical continuity) and four elements of capability (economic interrelations and capability, state and potential of infrastructure development, availability of natural resources and administrative accessibility). The name of the provinces will be confirmed by two-thirds majority of the provincial assemblies, while the Government will form a Federal Commission with a six months term to make recommendations on the demarcation of the provinces. Based on the recommendations, the Legislature-Parliament, the current Constituent Assembly (CA) will transform into once the new constitution is promulgated, will vote on the demarcation by two-thirds majority.

The parties have settled on a bicameral legislature at the center and a unicameral one at provincial level. The House of Representatives will have 275 members elected through a mixed electoral system i.e. 165 members (60%) will be elected directly and the remaining 110 members (40%) through proportional representation. The National Assembly will have 45 members with five members elected from each province and the remaining five nominated by the central government.

The parties have also agreed that Nepal will adopt a parliamentary system of governance, despite Maoists opposition. Accordingly, the Prime Minister, as Chief Executive, will be the leader of the party/coalition that holds the majority of seats in the House of Representatives. An Election Council consisting of members of the Federal Parliament and Provincial Assemblies will elect a President with a largely ceremonial role. The deal also provides that after the promulgation of the new constitution, the Legislature-Parliament will elect the President, Vice-President, Prime Minister and the Speaker and Deputy Speaker of the Legislature-Parliament.

An independent judiciary will be created with a Supreme Court with final jurisdiction for constitutional interpretation. A Constitutional Court will also be formed for a period of ten years from the promulgation of the new constitution. The court, chaired by the Supreme Court Chief Justice, will adjudicate disputes between the center and the states as well as between states and other levels of government.

Lastly, the parties have also agreed to conduct local elections at the earliest possible. The absence of elected representatives in local bodies for more than a decade now, along with the political paralysis due to the constitutional deadlock, are seen as the main reasons for the government’s failure to lead effective post-disaster recovery.

Leaders of the four parties have hailed the deal as historic to end the deadlock and many feel that the compromise is probably the best that could be asked for to ensure political stability for reconstruction. Yet, the deal fell short of a breakthrough. Leaving such key issues, as the demarcation of the provinces, unaddressed, it appears to do more with the shared personal interests of the political leaders under the pretext of the earthquake.

Shared Political Interests

Altered national priorities for effective post-disaster response aside, the driving force behind the swift deal appears to be UML Chair KP Oli’s impatience to become Prime Minister while he saw that the earthquake provided the best opportunity to push for the new constitution without having to give up his stance against identity-based federalism. Oli will likely become the PM in the new government as per the NC-UML pact, which formed the current government only until the promulgation of the new constitution. As the CA essentially decided not to settle one of the most contentious issues i.e. the demarcation of the provinces, Oli had it all with the Monday deal. He, along with his party, has firmly been against identity-based federalism and pushed to decide on such disputes by voting. The decision the parties were unable to make now very well seems to be left for voting through the Legislature-Parliament after the new constitution is promulgated.

Oli’s impatience converged with the opposition leaders’ ambition to get access to state power again. While observers claim the Maoist Chief Prachanda wants such access to bury the fears of reported corruption and other cases against him, his deputy Baburam Bhattarai is reportedly keen on leading a powerful reconstruction agency of the government. This is behind the Maoists’ fatigue with the prolonged dispute on federalism that even threatened the agreement on republicanism and secularism, with extremist forces gaining strength. The lack of public interest in politics following the quake would have only worsened the Maoists’ chances to keep the protests going to demand federalism. While the earthquake has proved the central government’s ineffectiveness to carry out post-disaster response in remote areas, which benefitted the idea of federalism, the Maoists, in unfavorable balance of power, failed to use the opportunity to push the agenda of identity-based federalism but adversely stepped back on their insistence on such federalism in a ‘something is better than nothing’ political environment.  

At the same time, MPRF-D leader Gachhadar is known to aspire to be in the government to increase his political power and to compensate for his late entry into the Madhesi movement, which achieved the inclusion of the notion of federalism in the Interim Constitution. Reports emerged instantly on the political deal behind the 16-point agreement, speculating that Maoist and MPRF-D leaders are to get key portfolios in the new government, with the new President coming from among the Maoists as well.

On the other end of the spectrum, the deal will establish the political legacy of the Nepali Congress and PM Sushil Koirala. The constitution being finalized under his leadership will strengthen his position in the upcoming party convention, where he might run for party presidency again as well as increase significantly the party’s chances in the forthcoming local elections.

Nonetheless, with the talks on new government gaining ground, many are skeptical how it will be any different from the current government in leading the post-disaster recovery with the same old political and state institutions.

Key Constitutional Issues Unaddressed

Monday’s deal has paved the way for a ‘super fast-track’ constitution writing process and leaders plan to make a draft constitution public as early as mid-July. However, the deal that puts an end to a long-delayed process might merely mean a deferral in terms of substance – leaving the central constitutional dispute on federalism unresolved. The parties have agreed to identity and capability as the basis of the federal structure, as established by the State Restructuring Committee of the earlier CA and the subsequent commission. However, how the parties arrived at the number of provinces without deciding on the boundaries has puzzled many.

What the eight-province model would bring about remains an open question for now, but it is likely to mean a compromise between the NC-UML-proposed seven-province model and the ten-province structure the Maoist-led alliance put forward. It would not have been wrong, if some technical questions on federalism had been postponed, provided that, at the very least, there was an agreement on how the federal model will look like. One such issue could have been the status of five disputed districts in southern Nepal that have very mixed demography of ‘hill and plain people’. But leaving it for a yet to-be-established Federal Commission to formulate recommendations on the demarcation of all provinces of a country of 26 million raises more questions than answers. Including, how such commission will be formed and how it is supposed to settle in six months an issue that the CA could not resolve in seven years? The final federal design will eventually have to be approved by two-thirds majority of the Legislature-Parliament. If the decision is going be a political one, a technocrat Commission seems to be only a tool in the hands of the political leadership to abdicate from its responsibility for the time being. The last State Restructuring Commission and Nepal’s history of commissions shows that they tend to be dominated by political appointees and rarely meet deadlines. And while it would be wrong to judge prematurely the future Commission’s integrity or effectiveness, concerns arise that the issue of federalism will eventually be left hanging indefinitely or overturned entirely.

While the deal fails to address the aspiration of small, marginalized, indigenous and other ethnic groups to be represented in the future federal structure, it also means a step backward in terms of their inclusion in the electoral processes. The parties agreed to a mixed-member proportional representation electoral system with 60 per cent elected directly and 40 per cent through proportional representation in the House of Representatives, as opposed to the 40-60 shares in the current CA. Thus, the interests of marginalized groups have once again been effectively sidelined through closed-door agreements of Nepal’s political elite.

Moving Ahead

The four parties together command around 465 seats – significantly more than the required two-thirds majority – in the CA. Nevertheless, it remains to be seen how the plan for the ‘super fast-track’ constitution writing will accommodate the concerns of parties inside and outside the CA that have opposed the 16-point agreement, especially that there are reservations from sections within the four parties themselves.

Opposition alliances have already split over the deal. Twenty-eight parties of the Maoist-led 30-party opposition alliance, except Maoists and MPRF-D, have opposed the deal. Most of them have only expressed support with criticism over Maoists’ commitment to continue existing ethnic/regional clusters in future federal structure. The Maoists’ alliance with its hardline splinter factions has also collapsed over the agreement to the parliamentary system of governance. Hindu monarchist party RPP-N has also opposed the deal and so have the movements and organizations of indigenous groups. Some Madhes-based parties have already boycotted CA meetings and even threated to walk out of the CA. 

Although those Madhes-based, ethnic and other fringe parties and movements possess little strength, there are high chances that the constitution resulting from Monday’s deal might be short-lived, if genuine aspirations of those groups are not addressed effectively in the constitution writing through consultations. Failure to do so might bring back unrest to the streets immediately. While in the long run, the exclusion might lead moderate Madhesi and indigenous groups to ally with extremist and separatist forces. This might defeat the immediate goal of the new constitution to bring stability to the divided nation. Ensuring that the final stage of the constitution drafting process is inclusive remains inevitable for political and social stability that can allow for effective post-disaster recovery.

Prabindra Shakya is engaged in research and advocacy on peacebuilding and human rights, with particular focus on indigenous peoples and minorities.