Causes of Nepal's Constitution-Making
Nepal's constitution-making process was integral to the nine-year-long peace process (2006-2015) that brought to an end a decade of civil war insurgency in which over 17,000 lives were lost and over 3,000 Nepalis were ‘disappeared’.[1547] The new Constitution was drafted after the end of armed hostilities with the explicit aim to deliver durable and sustainable peace to the country.
The new dispensation was expected to be permanent and as such address and resolve the root causes of the conflict once and for all. Social inclusion both in terms of recognition of diversity and redistribution of resources became the mantra of this constitutionbuilding exercise with a view to breaking the hegemony of historically dominant groups through a radical state restructuring by constitutional means.An analysis of the Maoist demands for constitutional change immediately before and during the war helps explain the centrality of constitution-making to the peace process itself. In 1996, the Communist Party of Nepal (Maoist) had united the small far-left parties excluded from the 1990 constitution-making process and submitted a list of 40 demands to the Government threatening an armed insurgency were these demands not met.[1548] The demands included: the end of Nepal's feudal monarchical political system; economic redistribution;, the declaration of Nepal as a secular state; equal rights for women; ethno-linguistic minorities, and dalits; and the promulgation of ‘a new constitution drafted by the people's elected representatives’. With respect to territorial restructuring, they demanded that ‘in areas having a majority of one ethnic group, that group should have autonomy over that area’[1549] The main grievances about the 1990 Constitution were the only partially constitutionalised role of the King, a strong executive dominance, the overly centralised nature of state, and the ethnocentric institutionalisation of the nation at the constitutional level.
The triumvirate of Nepali nationalism - the Shah monarchy, Hinduism, and the Nepali language - was, in fact, given centrality in the constitutional text to enshrine Khas-Arya dominance also on a symbolic level.[1550] In substantive terms, this hegemony was reflected in the under-representation of historically marginalised groups in all branches of government and state institutions.The central Government ignored the demands and soon afterwards the Maoist insurgents orchestrated coordinated attacks on security forces in the Western districts of Nepal. Following the royal massacre in June 2001 where nine members of the royal family lost their lives - including King Birendra and Queen Aishwarya, the Maoist intensified their military campaign against security forces. The ascension to the throne of unpopular King Gyanendra also helped further the Maoist cause because it was accompanied by two bouts of emergency and authoritarian rule by the new monarch in 2002-2003 and 2005 in which also the mainstream political parties became entirely sidelined.
In July 2001 following a change at the helm of the Government in Kathmandu, peace talks began, and the Maoists advanced another list of demands. Significantly, their political demand for an interim government to pave the way to the election of a constituent assembly eventually led to the collapse of the peace talks altogether.[1551] The Maoist demand for the abrogation of the 1990 Constitution and the election of a constituent assembly became non-negotiable as these two aims represented the keystone of their political programme to re-fashion the Nepali state. By 2002, the Maoists had acquired military control over half of Nepal's territory, especially in the countryside where state institutions became confined to the District Headquarters. It became clear that the conflict could no longer be resolved by military means. After an intensification of the hostilities and another failed round of peace talks, a compromise was eventually reached three years down the line when the mainstream political parties agreed to the long-standing Maoist demand for a new constitutional settlement.
On 25 November 2005, the Twelve Point Agreement was brokered in India between the Maoists and the mainstream political parties - now entirely excluded from representative politics by King Gyanendra and his supporters. The Agreement included the commitment to elect a constituent assembly, eventually fulfilling the promise that King Tribhuvan made to Nepali people in 1951 when the Rana regime was overthrown.[1552] The moment was historic and galvanised the pro-democracy forces.In April 2006, the Maoists and the mainstream political parties launched a joint pro-democracy movement against King Gyanendra’s authoritarian rule. After a very brief confrontation, the pro-democracy forces succeeded in restoring the House of Representatives (Parliament’s Lower House), which had been dissolved in 2002. This body was going to act as Nepal’s interim legislature until the elections of the constituent assembly. Nepal’s return to parliamentary politics inaugurated a phase of exhilarating optimism for the advancement of democracy and social inclusion, and the beginning of the interim constitutional phase. It was the start of the peace process, which entailed two steps: first, the disarmament of the People’s Army and the integration of the Maoist combatants into the Nepal Army, which was eventually completed only in April 2012; and second, the drafting of a new Constitution by a directly elected, highly inclusive body - a constituent assembly. Effectively, the process of constitution-making could begin only after the threat of the gun was removed.
The aspiration for building peace and an inclusive society through a radical process of state restructuring meant that Nepal’s constitution-makers were expected to deploy innovative forms of constitutional design. Initially the stated goal of CA1 was twofold: achieve political change and remove deep-seated socioeconomic structures of marginalisation along intersectional lines. Both the politics of redistribution and politics of recognition came to play an important part in questions of constitutional design.
The profoundly diverse and unequal state of Nepali society along the lines of class, caste, ethnicity, language, religion, region, gender, and sexuality became the central issue to address. The 2011 Census data provides an interesting picture of Nepali society with Hinduism as the religion of 81 per cent of the population and Nepali the lingua franca of the majority of the population, but only 44.6 per cent named it as their mother tongue, alongside 122 other mother tongues.[1553] Of the country’s 125 caste and ethnic groups, only the largest six account for more than five per cent of the total population. Moreover, the various groups are intermingled rather than territorially concentrated, and none of them constitutes an absolute majority in any particular region. The two biggest groups are the Chetri (ie, Kshatriyas of local Khas origins) who make up 16.6 per cent of the population and the Bahun (ie, Pahari or hill Brahmins) who make up another 12.2 per cent. Together, these two high-caste Hindu groups constitute the Parbatiya Khas-Arya group (28.8 per cent) to which Nepal's royal family and most of the elites belong. Dalits (ie ‘former untouchables') constitute 14 per cent of Nepal's population. The 63 groups classified under the umbrella term Adivasi Janajati (ie ‘indigenous people, ethno-linguistic groups who do not use Nepali as their mother tongue) form 36 per cent of the population. Madhesi groups account for less than 20 per cent of the population.[1554] In 2021 another Census was conducted, but at the time of writing the full data is not publicly available yet.The Maoists' demands during the civil war and during the peace process revolved around a multi-dimensional understanding of marginalisation, encompassing both questions of class and identity. Their notion of identity politics went beyond ethnicity to include other dimensions such as gender, caste, religion, and region. In short, Nepal's People's War was not an ethnic conflict per se, but it certainly featured an ethnic dimension.
Identity politics in Nepal, however, predated the Maoist insurgency and was articulated in the public sphere at least since the democratisation of 1951, even if it was with the re-democratisation of 1990 that the country saw a marked increase in political mobilisation along identity lines. The 1990 constitutional ban on the formation of communal parties made parliamentary politics almost the exclusive purview of ideology-based parties.[1555] Throughout the 1990s the one notable exception to this pattern was Anandi Devi, a Terai regional party advocating for Madhesi rights, that found small parliamentary representation. However, identity-based demands and concerns remained largely ignored by all the other mainstream political parties, which featured a staggering dominance of Bahun and Chetri males in the composition of their respective Central Committees.[1556] Identity politics was mainly conducted outside of Parliament through the burgeoning Janajati organisations formed after 1990 such as the Nepal Federation of Indigenous Nationalities (NEFIN). In 1993 NEFIN assumed the connotation of adivasi interpreted in Nepal as ‘indigenous' (as opposed to ‘tribe' in India) to bolster claims for recognition through international legal instruments such as the Indigenous and Tribal Peoples Convention (ILO 169) ratified by Nepal in September 2007. Dalits, various religious minorities, women and other historically marginalised groups progressively put forward demands for recognition and redistribution, but until the early stages of the peace process they were of a civil nature, ie to compete for resources within the system.[1557]These demands for inclusion were clearly visible in the drafting process of the interim Constitution, which was a non-negotiable demand by the Maoist in order to join both the legislature and the Government, and eventually pave the road to the elections of the constituent assembly. In June 2006, the Eight-Point Agreement between the Maoists and mainstream parties created a six-member Interim Constitution Drafting Committee (ICDC) to prepare a draft of the new Constitution under the chairmanship of former Supreme Court Justice Laxman Aryal.[1558] A month later, peaceful protests organised by the Women's Movement succeeded in having another nine members added to the Committee to include women and ethno-linguistic groups in the drafting process.[1559] On 25 August, the Committee submitted the draft Constitution to the Heads of the negotiating teams, Home Minister Krishna Prasad Sitaula and Maoist leader Krishna Bahadur Mahara.
A long stalemate ensued as issues concerning arms management took precedence over constitution-making. Following the signing of the Comprehensive Peace Agreement (CPA) on 21 November 2006, the interim Constitution draft was revised by the two negotiating teams and the final editing was conducted by Home Minister Sitaula and Maoist leader Baburam Bhattarai in December 2006. The outcome of the interim Constitution resided was finalised by the top political brass and gamed for medium to long-term political gains.Public expectations were however different. In an interview immediately after his appointment, Committee Chairman Laxman Aryal declared that the interim Constitution was the lol mohar (red seal) of the peoples victory in the pro-democracy movement and of the elections for the constituent assembly.[1560] In reality, the finalised document bore strong resemblance to the embattled 1990 Constitution that it was designed to supersede. While the interim Constitution remained silent on the issue of the monarchy and declared Nepal a secular state, it retained a parliamentary frame of government, created a unicameral Interim Legislature, preserved the wide powers of the Nepali judiciary, and the institutional set up under the 1990 framework as many questions were left to the constituent assembly to decide, including the embattled issue of federalism. This interim Constitution succeeded in paving the way for the co-option of the Maoists into constitutional democratic politics. Eventually, on 15 January 2007, the 1990 Constitution was abrogated, and the new interim Constitution promulgated.[1561] The Maoist delegates subsequently joined the Interim Legislature and Cabinet, respectively in January and April 2007.
In January 2007, the Madhesi Andolan - a mass protest movement against governmental discrimination of the Madhesi population - erupted in the Terai, leading to prolonged strikes, shutdowns, and violent clashes. To appease the protestors, the Government eventually accepted their demand for federal restructuring and amended the interim Constitution accordingly. However, the interim Constitution did not contain a roadmap for the federal transition, just a vague commitment to future federalisation. The question was simply deferred not resolved. As a result, Nepal remained de facto a unitary state throughout the making of the permanent constitution and the relationship between federalisation and identity became the most fraught issue in the entire process, so controversial and intractable that it would eventually derail the work of CA1. '1 hese developments in the early stages of the peace process also made it clear that the Pahari-Madhesi divide had become the main cleavage in Nepali politics and that it would have had a significant impact on constitution-making dynamics.
II.