'lhe Process of Constitution-Making in Nepal
'lhe process through which Nepal's latest constitution-making experience was carried out - through a directly elected constituent assembly - explains the enormous expectations placed on Nepal's new Constitution.
As an instance of extraordinary constitutional politics, the modality of constitution-making through a constituent assembly represents the archetype of revolutionary constituent power. As Arato illustrates, constituent assemblies are thought of as sovereign institutions with unlimited powers, the embodiment of the unified will of the people; as such they hold out the promise of a total rupture with the previous regime through a foundational moment.[1562] 'lhe reality of constitutionmaking often diverges from this theoretical conceptualisation - Nepal's latest constitution-making experience is a case in point - because the actual final drafting is often carried out by already dominant political factions with the exclusion of many other groups, including those groups that are involved in the process.[1563] 'lhe case study of Nepal (2006-2015) offers important insights into the gap between the theory and practice of constitution-making, especially in fraught transitional political contexts.The optimism surrounding Nepal's constitutional transition also meant that the country became an international laboratory for constitution-making advice. The United Nations and other international actors have actively supported Nepal's post-conflict constitution-making endeavours. The United Nations Development Programme (UNDP) provided support from November 2006 via the Constitution Advisory Support Unit (CASU) headed by Yash Ghai, and from April 2008 until 2015 via the Support to Participatory Constitution Building in Nepal project (SPCBN) headed first by Larry Taman and then by Rohan Edrisinha.[1564] These international advisors offered the constitutional experiences of many post-colonial countries (such as South Africa, Taiwan, India, Kenya, and various Latin American countries) as potential models for Nepal.
While international donors were seen to push the inclusion agenda forcefully during the CA1 term - often displeasing the more conservative political forces, after the collapse of CA1 their role and influence were greatly reduced. They however continued to support the constitution-building process, even if with significantly reduced impact.After some delay, the election of CA1 was eventually held on 8 April 2008, with a turnout of over 60 per cent of eligible voters.[1565] The body comprised a total of 601 seats of which 240 (42 per cent) allocated by first-past-the-post in single-member territorial constituencies (the same as those in the last general election in 1999) and 335 seats (58 per cent) allocated by proportional representation in which the entire country functioned as a single constituency and the electorate voted for political parties, not individual candidates. The proportional mechanism gave parties ultimate control in the selection of candidates, even if subject to the legal quotas relating to identity (three per cent dalits, 37.8 per cent marginalised groups, four per cent backward regions, 31.2 per cent Madhesi, and 30.2 per cent Other Groups).[1566] The remaining 26 seats were reserved for appointments made by the Cabinet after the election. This mixed electoral system delivered one of the most inclusive constitution-making bodies ever created in Nepal and beyond. However, the parties could exercise a high degree of control over their constituent assembly members elected for the proportional seats - where the majority of members from historically marginalised groups held their seat. This was because constituent assembly members subjected to a three-line whip would be expelled from their respective parties resulting in the loss of their seat altogether.[1567]
Twenty-five of the 57 parties contesting the CA1 election obtained seats, but no party controlled an absolute majority so many compromises and alliances had to be brokered.
To the surprise of many observers, the Maoists obtained a relative majority of 35 per cent of the total seats, doing particularly well in the Terai. The two mainstream parties fared much worse: the Nepali Congress came second with 19 per cent, while the Communist Party of Nepal (United Marxist-Leninist) (UML) came third with 18 per cent. The fourth biggest party, the Madhesi People's Rights Forum (MJAF) obtained nine per cent, while the fifth, the Terai Madhes Loktantrik Party, 3.49 per cent. Only five other parties controlled more than one per cent of the seats; 16 parties fell even below that threshold.[1568] The fragmentation of CA1 complicated the drafting process also because the constituent assembly operated both as the country's legislature and constitution-drafting body. In a parliamentary system like Nepal, it meant that political alliances within the legislature were not just necessary to draft the constitution, but also to forge coalitions with the ability to win a confidence vote to form the Government. Ordinary politics ended up getting in the way of constitution-drafting.On 28 May 2008, CA1 held its first meeting and immediately proclaimed Nepal a federal republic, abolishing the over two-and-half century old Shah monarchy. Immediately afterwards, CA1 created its Rules of Procedure and calendar for drafting the new constitution. In was only in December 2008 that the various drafting committees were created, and the actual constitution- drafting began. The Assembly's Speaker allowed for the creation of cross-party Caucuses along identity lines, resulting in constituent assembly members from marginalised groups often voting in these early stages according to their conscience against party lines.[1569] All the Thematic Committees submitted their reports and concept papers for discussion to the full Assembly between May 2009 and January 2010.[1570] By May 2010 all the reports prepared by the committees had been discussed in the plenary, but no agreement could be found on the most contentious issues: federal restructuring; presidential versus parliamentary government; and the judiciary.
At this point the crucial task of resolving these highly controversial political disputes was removed from the deliberative arena of CA1 to the High Level Political Committee (HLPC), which had been set up by Prime Minister Girja Prasad Koirala in January 2010. Composed primarily by Khas-Arya men, very little attention was given to inclusion issues. As I have argued elsewhere, even if the parties' leaders on the HLPC were constituent assembly members they did not operate as constitution-makers bound by the constituent assembly Rules. This Committee was a highly secretive and opaque political space that effectively sidelined CA1, the only body in which marginalised groups had found direct representation.[1571] Notwithstanding four extensions of the CA1 initial term of two years through four separate amendments to the interim Constitution and the controversial constitutional litigation over these amendments in which the Supreme Court became embroiled, no agreement could be found.[1572] The question of federalism proved particularly intractable, leading to the dissolution of Nepal's first ever elected constituent assembly without the new constitution in place in May 2012.The period between the collapse of CA1 and the elections of CA2 in November 2013 implicated the Chief Justice Khil Raj Regmi in this difficult political transition. His name was put forward to lead the Government that would organise the elections of CA2. He accepted the role even if he was just on temporary leave from his judicial post, in clear breach of the doctrine of separation of powers. In fact, the agreement amongst the four main political parties to support this arrangement stipulated that Regmi would refrain from participating in his duties as Chief Justice of the Supreme Court while exercising the powers of the Prime Minister, but that after the CA2 elections had taken place, he would resume his position and regular duties as Chief Justice.[1573] The elections were successfully held in November 2013, but Regmi remained at the helm of the executive until February 2014 after the first meeting of CA2 and the formation of the new political government under the premiership of Nepali Congress veteran Sushil Koirala.
The Supreme Court found itself in a very difficult position as a result of this clearly unconstitutional arrangement.The elections to CA2 featured an exceptionally high turnout of approximately 77 per cent, with minimal pre-election intimidation and violence.[1574] The elected body featured exactly the same configuration of CA1 with 601 seats allocated through the same mixed electoral system and functioning both as ordinary legislature and constitution-making body. However, these elections saw a reversal of electoral fortunes: the main centrist parliamentary parties - the Nepali Congress and UML - back to the political forefront in that they emerged as the biggest two parties in the Assembly with 34 per cent and 30 per cent of the total seats respectively; the Maoists instead came third with only 14 per cent. Another 28 parties secured representation in CA2, but all with less than five per cent of the total seats. While the two main parties dominated the new body, the two-third majority requirement to pass the new constitution made them short of a handful of votes to control the process entirely. There was an agreement to build on the reports and concept papers prepared by CA1, however, unlike in CA1, the main party leaders did not allow for the formation of cross-party Caucuses along identity lines. A 2014 Policy Brief by Martin Chautari passed a damning verdict on CA2:
Lessons learnt by the political elite from the first Constituent Assembly thus appear to be the importance of limiting inclusion, securing the privilege of the main political parties, enabling absenteeism, controlling democracy, and protecting political hierarchy in what should be the site of equal democratic deliberations for a new constitution.[1575]
As a result, not much progress on drafting was made until the devastating spring 2015 earthquakes.
In the wake of the earthquakes, the leaders of the main four parties (Nepali Congress, UML, Maoists, and Madhesi Forum-L) sought to fast-track the drafting of the constitution.
They sidestepped key procedural requirements by suspending various constituent assembly Rules, leading, for instance, to a much shorter timeframe for constituent assembly members to revise the draft tabled by the Drafting Committee and for public consultations.[1576] This fast-track process excluded from high-level decision-making smaller parties and members of historically marginalised groups - even within the main parties. On 30 June 2015, the Constitution Drafting Committee released the first draft of the Constitution, which postponed the naming of the federal units, presented an eight Province model not based on any of the previous proposals, backtracked on proportional representation and secularism, reintroduced gender-based discrimination in matters of citizenship, and created the controversial category Khas-Arya as a group entitled to affirmative action measures. Tensions ran high across the country. The draft was changed, but when a six Province federal model was put forward, violent protests erupted in the Terai. India retaliated with an unofficial trade blockade of its open border with Nepal, while the response by the Nepali security forces to the protests became heavy handed with a number of casualties. In this vulnerable context, the majority of Nepal's political forces responded to the call for national unity and closed ranks. Through a series of opaque agreements and political deals, the text of the new constitution emerged. Eventually, a consensus was reached amongst the top brass and on 20 September 2015 the Constitution was passed with an 89 per cent majority by 532 out of the 598 CA2 members present on the day of the vote. Significantly, there was a complete absence of official records of the constitution-making process in CA2: committee reports were not made publicly available, and the debates were not recorded. This culture of secrecy surrounding the drafting process further eroded the legitimacy of the new Constitution, especially given how embattled some of its provisions remain to this day.III.