Despite spending more than six years of time and billions of rupees, twice electing the Constituent Assembly (CA), and the involvement of scores of national and international experts, the much anticipated constitution of Nepal remains elusive. What was expected to be drafted within the first two years of the first CA is still not forthcoming. As and when it will be promulgated, that document still won’t be Nepal’s maiden constitution. In the past 70 years, Nepal has already written, promulgated, and discarded five constitutions (1948, 1951, 1959, 1962, and 1990) and the sixth one has been in force for the last seven years, albeit it is an interim one. Roughly, in every 10-15 years, barring a longer spell of the partyless Panchayat regime for 30 years, Nepal has periodically witnessed a major political upheaval that has invariably ended in promulgating a new constitution. In this respect, Nepal definitely is not a rookie when it comes to working on constitutional documents.

Moreover, several of today’s key players, including Sushil Koirala, Madhav Nepal, Jhala Nath Khanal, KP Oli, Ram Chandra Paudel, Sher Bahadur Deuba, Surya Bahadur Thapa, and the like, have been closely involved in multiple constitutional undertakings of the past. Be that during the making of the 1990 constitution, the Interim Constitution of 2007, or the failed first CA. Most of them were closely associated, directly or indirectly. Not to forget, the international community has been generously supporting Nepal’s constitutional process in cash, kind, and consultations as well. Nevertheless, if it is not for lack of experience, knowledge, exposure, or resources, what then is it that is delaying constitution drafting?

Balancing priorities

While the Nepali Congress (NC) and the CPN-UML are still not fully willing to federalise Nepal, the UCPN (Maoist), backed by the Madhesis and Janajatis, is not willing to give up easily on its demand of identity-based federal units. Similarly, the NC’s fixation with the Westminster model and the UCPN (Maoist)’s penchant for a presidential system has yet to find common ground. Most of the Madhes-based parties, with the exception of Upendra Yadav’s party, are with the NC on this agenda. There may not be extreme opinions regarding the electoral system but given an opportunity, the Madhesis and Janajatis would like to go for a fully proportional electoral arrangement. Therefore, the different political parties and forces, whether inside or outside the CA, have yet to find a point where divergent interests and options converge. In other words, all stakeholders still have to strike a good balance between their ideological and strategic priorities.

As is said, dissent is the essence of democracy. It is indeed absolutely alright that in a country—as ethnically, culturally, and geographically diverse as Nepal, with political ideologies varying from communism, monarchism, to republicanism—political parties have disagreements on constitutional constructs, conditions, and clauses. However, after agreeing to a tricky 12-point understanding, dislodging a despotic monarch together through a historical movement, and holding the elections of the CA rather successfully with commendable coherence, it was anticipated that the Nepali political class would forge a minimum consensus on contentious constitutional issues. Unfortunately, as it appears, dealing with dissent is an art Nepali politicians have yet to master.

Elephant in the room

Many skeptics would agree that political party honchos do not worry as much about the future of federalism as much as they do about their own personal and partisan prospects once federalism will come into effect. The top echelons of the NC and UML, consisting of the Koiralas, Khanals, Nepals, Deubas, and Olis, all from the upper-caste hill ethnic groups, are determined to preserve their vote banks in the future federal setup. Prachanda and the UCPN (Maoist), as they count heavily on the Janajati vote and Madhesi empathy, cannot compromise state delineation on a basis other than along identity/ethnic lines. Even worse, the Madhesis, individually and collectively, fear that absence of Madhes province/s in the upcoming constitution will make them virtually non-existent. Hence, the uncertainty associated with federalism is squeezing the space for compromise.

Now that Indian Prime Minister Narendra Modi has expressed that  ‘consensus’ is the mantra for a durable constitution, India has finally broken its silence. This has excited a few, muted many, and confused a couple of neo-patriots who see it as India’s intervention in Nepal’s internal political order. Whether one likes it or not, India is the elephant in the room. It may not be trumpeting on the nitty-gritty of the constitution as of now, but it can be the game changer anytime. India is playing its cards close to its chest, though many interpret Modi’s call for consensus as lending support to the Madhesi and Maoist position on the constitution. Ideally, India would not like to deal with too many provinces in Nepal adjoining its borders. However, it is hesitant to be explicit on the number and names of federal units, as that would make it look closer to one or the other group. This indecisiveness from India has bereft the political parties from the much-needed thrust that they habitually need to converge on a central idea.

Safety of the status quo

The current status quo—with the Interim Constitution and the elected CA as a pretext for democracy—is not biting for anyone. The NC and UML are overjoyed by their electoral success while the UCPN (Maoist) is not sure about its future, as Baburam Bhattarai is threatening to split the party and the Madhesis and Janajatis are too dispirited to do anything adventurous. Though all the parties had committed to deliver a new constitution within a year, they know for sure that the CA is safe at least for the next three to four years. As a result, the comfort of the status quo is a big disincentive for the parties to feel any urgency in completing the new constitution.

So, what next? The ruling parties, reinvigorated by their electoral triumph, are tempted to use their numerical strength in the CA to promulgate a new constitution. Ideally, that’s how it should be. The new constitution must pass the numerical test of the CA, as that is what all the parties agreed to at the beginning and that is also what the Interim Constitution mandates. However, will an arithmetically derived constitution do justice to the aspirations of the people? No way. Therefore, while deciding the contents of the constitution, the inspiration must come from the 12-point understanding, the mandates of Janaandolan II, the Comprehensive Peace Agreement, the 8-point agreement with the Madhesis, and above all, the Interim Constitution that guarantees democracy, federalism, and republicanism. The structural framework of the new constitution should derive strength from Nepal’s diversity; the division of federal units and the electoral system should ensure the respectable representation of women and marginalsed communities by creating a demographic advantage for them; and the form of government should consolidate multiparty representative democracy.

With time, it is going to be more challenging. One failure of the CA resulted in the emergence of several new actors—Mohan Baidhya, Kamal Thapa, CK Raut, and now Biplav. Also, a protracted transition may spur unrealistic ambitions in the Army and the judiciary, as happened in Pakistan, which took nine years to draft the constitution. If leaders do not get their acts right at this stage, the constitution that looks so close might go that much further away.

Nishaant is Executive President of the Nepal Democracy Foundation ([email protected])