Federalism: Nepal’s final frontier

By Jayant Prasad

The long-awaited promulgation of a new Constitution within the next few days in Nepal was expected to be the culmination of its transition to a pluralist democracy. The institutionalisation of the gains of Nepal’s remarkable peace process should have been a time for celebration, heralding an era of harmony and progress. The Constitution is meant to reaffirm both the social purpose and the political commitments embedded in the 2006 Comprehensive Peace Agreement and the 2007 interim Constitution, establishing Nepal as a federal democratic republic.

Instead, a revolt is gathering momentum across Nepal. The Terai has been on fire. Protests have shut it down for over the past three weeks. Forty persons and policemen have been killed in the ensuing violence. The present calamity is man-made, unlike the earthquake five months ago. The violence this time is because of a disregard for the interests of the Janajati and Madhesi peoples of Nepal, consisting of several disadvantaged and subaltern social groups, including the Tharus, who are amongst its most marginalised communities.

These groups believe the promise of a democratic restructuring of the state stands subverted. The six-State federation model initially put on the table in early August by the ruling coalition, and supported by the United Communist Party of Nepal (Maoist) [UCPN-M], as also the later version that added a Province, reflect political parsimony and gerrymandering that would effectively disenfranchise the Janajati and Madhesi communities.

Repression not the solution

Repression cannot be the right response to political disaffection. This can only increase alienation and cause irreparable long-term damage to Nepal’s national cohesion. The plan to ride out the protests by a display of force might, instead, lead to a bigger movement, as happened at the time of the Jana Andolan of 2006 and the Madhesi agitation of 2007.

The Jana Andolan unseated the monarchy. The Madhesi agitation persuaded the late Girijababu (Girija Prasad Koirala, the then Prime Minister) to guarantee a federation in Nepal, and delimit the Constituent Assembly (CA) seats in the Terai and the mid-hills, proportionate to the population. In early 2008, he enabled an eight-point agreement accepting the Madhesi people’s call for “an autonomous Madhes and other people’s desire for a federal structure with autonomous regions.”

The social and political contracts he helped create must not be cast away. Prime Minister Sushil Koirala must respect the legacy of Girijababu, at whose feet he learnt his politics, and embrace an inclusive discourse. If not, Nepal might again face troubled times, and the half-hearted republicans and closet monarchists, together with other regressive elements, might drag Nepali politics irrevocably backwards.

In pushing ahead with voting on a contested Constitution, the ruling coalition in Nepal might be on the verge of squandering the gains of their electoral victory of November 2013. Excluding the 26 nominated seats in the 601 seat Assembly, the Nepali Congress (NC) won 196 seats, followed by the Communist Party of Nepal (Unified Marxist-Leninist) [(CPN (UML)] which won 175, together constituting a comfortable majority. The victors should not fall victim to a sense of triumphalism. They won not because the Janajati and Madhesi voters rejected their own empowerment, but because the Maoist and Madhesi leaders did not deliver on their promises.

The Cabinet’s cosmetic invitation to the Tharu and Madhesi leaders for a dialogue, without the commitment to compromise, was like using the wick of a candle to light an electric bulb. When Prime Minister Narendra Modi spoke with Mr. Koirala on August 25, he called for restraint, an end to violence, and restoration of social harmony. He reiterated that Nepal’s political leadership should resolve all outstanding issues through dialogue between all political parties through a process of consultation involving all the parties. This was not done.

Democracy in Nepal has had fitful progress. The overthrow of the Rana oligarchy in 1951, following King Tribhuvan’s dramatic evacuation to Delhi and triumphal return, did not immediately result in popular rule. The Interim Government of Nepal Act of 1951 limited the Cabinet’s authority. First King Tribhuvan, and from 1955 his son and successor, King Mahendra, continued to control the key levers of government, making the country’s politics palace-centric.

The lining up of political leaders at the Narayanhiti Palace — for attention and office — undermined their standing. Monarchy played musical chairs with the Cabinet, with 10 of them constituted and sacked in eight years, until a new Constitution was adopted in 1959. NC’s impressive victory was rewarded with a dismissal the following year, with the Prime Minister jailed, political parties outlawed, and multiparty democracy replaced by a party-less Panchayat regime that lasted 30 years.

The first large-scale people’s democratic movement in Nepal, known as Jana Andolan-I, brought down this regime. King Birendra quickly adjusted to the new contingency. A new Constitution was promulgated the following year; parliamentary elections held in 1991, 1994, and 1999; and local-level elections in 1992 and 1997. Democratic consolidation was prevented by palace-inspired intrigues, and from 1996, by the added challenge of the Maoist insurgency.

After King Birendra’s patricidal killing in 2001, his successor, King Gyanendra, dispensed with democratic accountability and concentrated executive authority in his hands. Based on the twin demands of democracy and social justice, a second wave of the people’s movement erupted in April 2006 that swept out the monarchy from the Nepali political system.

The demand for an inclusive democracy was not simply superimposed on Nepal’s emerging democratic edifice as a distemper that could be dusted off — the inheritance of Jana Andolan-II and the Madhesi movement of 2006-07 embedded this idea in the very foundations of the new republic.

At the very first meeting of the CA, on May 28, 2008, all members present, excluding four from Rashtriya Prajatantrik Party-Nepal, declared Nepal to be a federal democratic republic. With their common adversary — the monarchy — gone, the clashing interests of the major parties came to fore. They expended much of their energy in the making and unmaking of governments. This caused political fragmentation, especially within UCPN-M, which split into two, and the Madhesi parties, which multiplied in four years from three major parties into thirteen. CA members were not involved in the shaping of constitutional debate. The social capital accumulated by civil society in 2006-07 was largely frittered away. Compromises and consensus-making became impossible.

Differences on the nature and form of federalism cut to the heart of Nepal’s political predicament. The first CA’s Committee of State Restructuring recommendation of 14 Provinces was considered profligate. An independent High Level State Restructuring Recommendation Commission then recommended 10 Provinces. Divergence on the number, names, boundary delineation, and division of powers between Centre and Provinces continued to hold up progress.

No return to a unitary order

Despite the marginalisation of forces favouring inclusive federalism in the 2013 elections, attempts to revert to what journalist C.K. Lal describes as “the old unitary and exclusionary order” will not be politically sustainable in the long run. The lesson from the present agitation is that unless the new Constitution is equitable, and encapsulates the values emanating from the womb of the people’s movements, Nepal’s quest for democratic governance might again run aground.

First and foremost, the Nepal Army, a force of the last resort, must be pulled out from the Terai districts. Nepal’s Human Rights Commission has asked government to do so, while urging the United Democratic Madhesi Front (UDMF) to keep their agitation peaceful. In a stunning indictment of the police, the Commission noted that protesters who died or were injured had been shot in the head, chest and stomach, proving the “excessive use of force,” and violation of humanitarian norms.

The triumvirate with a combined majority in CA that can ramrod the draft Constitution through — the NC, the CPN (UML), and the UCPN-M — must eschew the temptation to promulgate a Constitution that is widely unacceptable.

Between the completion of the clause-by-clause voting and the adoption of the Constitution as a whole, they must revisit the process and seek the broadest measure of consensus. For a Constitution that has taken over seven years to negotiate, imposing an artificial deadline is incomprehensible.

The oldest and the newest Constitutions in South Asia, those of India and Bhutan, had the signatures of each and every member of their Constituent Assembly and the National Assembly, respectively. It will be a pity for Nepal to promulgate a Constitution that does not bear the signatures of all or nearly all of its CA members.

The differences affect just five of the 75 districts of Nepal, which is already assured of a federation. The effort now should be to reduce the remaining differences on the number and boundaries of the States to the barest minimum and remit the remaining issues to a commission.

Nepalis have a proven capacity for eschewing brinkmanship and showing flexibility. They have faced situations more difficult than the one that confronts Nepal today. They helped their country move from a state of insurgency and civil war to the quest for an inclusive democratic order. Visionary leadership can again overcome the clash of interests between the ruling Bahun-Chhetri elite and the Janajatis, Dalits and Madhesis. It is time for Nepal’s political leaders to show this can be done. The quest for a new Constitution has reached the last lap of a long marathon. This is not the time to stumble and fall.

(Jayant Prasad is a former Indian Ambassador to Nepal. Currently, he is advisor, Delhi Policy Group and visiting fellow at the Research and Information System for Developing Countries. This article was originally published in Indian Newspaper The Hindu on September 15, 2015 )

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