Nepal Averts Constitutional Crisis: Hope for Democratic Future Kept Alive

June 2, 2010

By George Varughese, Menaka Guruswamy

Around midnight on May 28, 2010, Nepali lawmakers took a stunning last-minute emergency action that served to keep hopes for a democratic constitutional republic and a stable nation alive in Nepal: by an overwhelming majority the Eighth Amendment Bill to the interim constitution to extend the Constituent Assembly’s tenure by one year was passed. Of the 585 lawmakers present in what was to be the final session of the House, 580 voted in favor of the Bill. (Four lawmakers from the Rastriya Prajatantra Party- Nepal (RSP) and one independent member voted against it.)

Nepal's Prime Minister Madav Kumar Nepal (center), and ministers and lawmakers vote on May 28 to extend the Constituent Assembly's tenure. PRAKASH MATHEMA/AFP/Getty Images.

The Birendra International Convention Center in Kathmandu was the perfect setting for a nail-biting finish to a contentious month of political bickering and gamesmanship played by the parties in government and opposition. Built years ago for the South Asian Association for Regional Cooperation (SAARC) Summit hosted by King Birendra, the Convention Center has been home for the past two years to the collective Nepali hope embodied by the Constituent Assembly. As a somber, despairing public gathered outside the Center for the day of reckoning, the three major political parties – the Unified Communist Party of Nepal (CPN Maoist), the Nepali Congress, and the Communist Party Nepal-United Marxist Leninist (CPN-UML) – nitpicked their way to another vaguely worded, unenforceable commitment announced at literally the eleventh hour.

Together, the three parties control over 450 seats in the House – the Maoists 229, Nepali Congress 115, and CPN-UML 108. Unlike other constituent assemblies that led countries such as South Africa or India through successful transitions to progressive constitutional democracies, no one political party in Nepal holds even a simple majority of seats in the House. This meant that from its inception, Nepal’s Constituent Assembly lacked a cohesive political and historical vision that such a process requires. The people of Nepal have had neither the benefit of politicians who display a sense of history, nor a political party that could push through its brand of constitutionalism by virtue of a sheer majority. Sadly for Nepal, a leader who projects a moral force and enjoys national credibility – like a compassionate, dignified, and always-civil Nelson Mandela or an adroit legal mind like India’s Ambedkar – is nowhere to be found.

Nepal has stepped uncertainly into what will now be its sixth constitution-making exercise, but with some differences from before: the absence of an authoritarian monarch and the involvement of what is now the largest political force, the erstwhile Maoist rebels.

While a crisis was averted on May 28, it is unclear how quickly the political parties will end their bickering and focus on the purpose for which they were elected – the drafting of the new constitution. The ink had barely dried on presidential approval for the extension before the three parties began quibbling over the last-minute, three-point political agreement.

Unfortunately, there is nothing to indicate that the performance of the Assembly during the12-month extension will be any different than that of the preceding 24 months. Agreement is yet to be reached on major issues like the Form of Government (Presidential, Parliamentary, or hybrid), or the appointment and removal of judges (one proposal is to reflect the political parties’ strength in the House), or the type of Federalism to be adopted (e.g., neither the number of states to be formed nor the basis of state formation has been agreed upon).

In many ways, Nepal is positioned no differently than many other countries have been during similar constitutional exercises. After all, constitution-making can be a deeply divisive and avidly political process. But if the process is to succeed this time, the year ahead must be different from the past two in the following ways.

• The relationship between the 601 Constituent Assembly members and the body politic needs to be enriched and made more transparent to enable a consistent and cordial dialogue.
• The process needs to be clearly explained to ensure public knowledge of and requisite participation in crafting the legal framework that will define the country’s collective future.
• Progress made and areas where there is still conflict between the drafters needs to be shared publicly.
• A civility of dialogue and disagreement needs to characterize the discourse that exists among the various political parties, within and outside the Assembly.

Nepal is a poor country, with GNI per capita of $400, adult literacy rate at 57.9 percent, and an infant mortality rate of 85.5 deaths for every 1,000 children under the age of five. Given the looming spectra of famine in many districts, massive unemployment, and a domestic economy brought to its knees by power shortages and labor stoppages, a shared sense of history and compassion toward the public is required rather than platitudes to party ideology.

If managed well, this next year can mark the beginning of the maturation of Nepal’s democratic culture. For this to happen, the government (whoever forms and leads it) must fully seize its responsibility as a faithful steward of the constitutional process and a proactive participant in the peace process. These are distinct and equally onerous responsibilities; the ability to keep them separate while making progress will determine whether or not Nepal’s sixth constitution will finally be drafted.

George Varughese is The Asia Foundation’s Country Representative in Nepal. He can be reached at [email protected]. Menaka Guruswamy is a constitutional lawyer consulting for the Foundation’s Nepal office.

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