Nepal's current Constitution, the seventh in the country's history, remains to this day controversial, especially for many marginalised groups in Nepali society, notwithstanding the inclusivity of the body that drafted it and the extensive international support it received.
It was promulgated on 20 September 2015 after an embattled constitution-making process through two directly elected constituent assemblies. This resulted from the failure of the first constituent assembly (CA1) elected in 2008 to deliver the new disposition in 2012 - notwithstanding four extensions of its initial two-year term.
This led to great instability and the election of a second constituent assembly (CA2) in 2013. The coming into force of the new Constitution passed by CA2 also concluded the nine-year-long peace process (2006-2015) that followed the civil war launched by the Communist Party of Nepal (Maoist), which ravaged the country for a decade (1996-2006). The expectations placed on the new 2015 Constitution were enormous: the making of the new document was tasked to address the root causes of the insurgency. In particular, the work of the constituent assembly was expected to deliver social inclusion through radical state restructuring and break the hegemony of the dominant groups in a highly diverse, rigidly hierarchical, and unequal society. As such the new Constitution was construed as the primary vehicle for including historically marginalised groups in political decision-making through federalisation, secularisation, quotas for political representation, and affirmative action measures.The 2015 Constitution, however, was rejected by a sizeable portion of Nepali society because of the combination of three factors. First, the fast-track and executive-dominated process in which the new Constitution was finalised by the main political parties excluded an array of social and political forces from having their say in the completion of the document. Nepal's political elites actively sought to marginalise the constituent assembly in the wake of the two calamitous earthquakes that had ravaged Nepal earlier in the year and the process lost to a great extent its deliberative and inclusive connotations.
Second, the explosive socio-political and geostrategic context in which the Constitution was promulgated partly justified the fast-tracking of the process, but also made it controversial. The violent protests by the Madhesi community (ie non-Pahari ‘Terai plain dwellers, often erroneously described as ‘of Indian origins') that erupted in the southern Terai region bordering India when the draft of the new constitution was published were met by a heavy-handed response by security forces. The situation was further exacerbated by India's unofficial trade blockade along its open border with Nepal in support of the protesters; this brought a fraught geopolitical dimension to the constitution-making exercise. India's actions were seen as an attempt to unduly influence the outcome of Nepal's sovereign process of constitution-making. Third, a number of substantive features of the new Constitution were seen to dilute the social inclusion and federalisation agenda, reinforce Khas-Arya (upper caste Pahari ‘hill-dwellers' Hindu) dominance, foster executive dominance, and curtail counter-majoritarian checks. Regrettably, Nepal's constitution-making process also led to a constitutional text that falls short of international legal standards (especially on citizenship) notwithstanding the extensive international assistance to constitution-making that the country received between 2006 and 2015.In terms of the outcome of Nepal's constitution-making exercise, the most problematic features of the new document have been as follows: the territorial demarcation of the federal units not on the basis of identity; the decrease in legislative seats allocated through quotas for historically marginalised groups and through proportional representation; the gender-based and intersectional forms of discrimination in matters of citizenship; the qualifications to secularism designed to privilege the historically dominant position of Hinduism within the Nepali state; the inclusion of Khas-Arya groups into the list of protected groups entitled to political quotas and affirmative action measures; and the restriction of the Supreme Court's powers alongside much greater executive influence over the judiciary. As a result, Nepal's constitutional framework remains to this day an embattled one, notwithstanding the two amendments in January 2016 and June 2020, which did little to address the vast array of grievances pertaining to the new Constitution.
Nepal's experience teaches us an important comparative lesson about the locus of effective decision-making and political authority at the time of constitution-making, especially during a fraught political transition. Nepal represents a cautionary tale about the high expectations that the modality of drafting a constitution through a constituent assembly engenders. The claim that constituent assemblies are sovereign institutions - the embodiment of the highest form of constitutional authorship and self-determination - is purely theoretical and often fails to ignore the power structure and political distribution of power within any given society. In this respect, an in-depth qualitative analysis of the Nepal case study reveals the difficulty of breaking the historical hegemony of dominant groups and the susceptibility of political institutions to reproduce and reinforce existing socio-economic and political hierarchies. Ultimately, Nepal's most recent constitution-making experience reveals the difficulty of effecting constitutional change geared to democratise the political sphere and make it more inclusive in line with best international practice, even in a setting that featured all the concomitants and coordinates that were expected to be conducive to such an outcome.
This chapter is organised into four sections. The first explores the key questions surrounding the reasons behind Nepal's constitution-making processes. In particular, it investigates the political, social and economic factors that drove the drafting of the Constitution in the fraught context of the peace process after a decade of civil war. The second section focuses on the coordinates and modalities of Nepal's constitution-making process itself through two constituent assemblies; it then assesses the significance of the failure of CA1 and the disastrous implication of the higher judiciary in executive politics in the transitional phase between the demise of CA1 and the elections of CA2. The third section analyses the text of the 2015 Constitution as the main outcome of the constitution-making process. It pays special attention to the role of international assistance to constitution-making in Nepal, which however resulted in the lack of compliance by the new Constitution with many international norms and standards. Finally, the fourth section evaluates the implementation of the Constitution in the past seven years, which reveals that patterns of executive dominance have increased to the detriment of other counter majoritarian checks within the constitutional framework, and socioeconomic and political marginalisation on the basis of class and identity remains rampant notwithstanding the promises of the new constitutional settlement.
I.