Conclusions
To conclude, Nepal’s 2015 Constitution remains embattled both in terms of the process through which it was finalised and in terms of the provisions it contains. While successful in concluding the peace process and averting (so far) a return to political violence, the new dispensation fell short of the promise of social inclusion it held out and of compliance with international legal standards in certain respects.
The case study of Nepal imparts two important comparative lessons about constitution-making, especially under fraught political circumstances.First, Nepal's experience represents an interesting instance of post-conflict constitutional transitions and imparts crucial lessons on the relationship between constitutional change and peace-making. In particular, I argue that the case study of Nepal highlights the difficulty in affecting broad structural changes in the constitutional arena that succeed in giving voice and power to political forces and social groups beyond the main stakeholders in the armed conflict. The primary goal of ending political violence and staving off the possibility of a return to political violence often trumps other considerations informing the constitutional transition. In other words, the self-preservation of the political actors with the greatest clout who can effectively threaten a return to violence will shape both the constitution-making process and its outcome. As a result, demands for the inclusion of marginalised groups and forms of redistribution, which informed the narrative around the emancipatory potential of constitution-making in Nepal, effectively became secondary to the political agenda of the dominant political forces. The goal of the biggest parties that dominated Nepal's constitution-making process remained the control and capture of state institutions - at all costs.
Second, Nepal represents a cautionary tale about the high expectations engendered by the modality of drafting a constitution through a constituent assembly.
Constituent assemblies are imagined as sovereign institutions and the embodiment of the highest form of constitutional- making through public participation and deliberation. Even in the best case scenario, however, constituent assemblies almost invariably function through committees and the space for plenary debate is limited. In the case of Nepal, the situation is even more complex as both constituent assemblies were effectively side-lined altogether by the top brass of the biggest four political parties. Key political decisions were not taken within the assemblies' committees, but outside of the assembly in a secretive and opaque manner contrary to the spirit and mission of the post-conflict transition. Nepal's 2015 constitution-making experience ultimately reveals the difficulty of breaking the hegemony of political elites and effectively redistributing power amongst groups that were previously excluded from governing. It is extremely hard to effect constitutional change aimed at democratising state institutions and open them up to the participation of historically marginalised groups in line with best international practice, even under circumstances like those of post-2006 Nepal where all the right concomitants had appeared to be in place.428