Nepal’s Constitutional Crisis
Nepal’s Constitutional Crisis
Why in News?
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. 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.
Nepal is governed under the Interim Constitution of Nepal, 2007. It came into force on January 15, 2007. It replaced the Constitution of the Kingdom of Nepal, 1990. The Interim Constitution was drafted to facilitate and manage the Nepali constitutional transformation process that started with the April 2006 people’s movement against the Nepal Monarchy, known as the Second Jana Andolan. The Interim Constitution was drafted to manage the transition of Nepal from a unitary, constitutional monarchy country to a federal republic.
The Interim Constitution provides for a Constituent Assembly, which was charged with writing Nepal’s permanent constitution. Under the terms of the Interim Constitution, the new constitution was to be promulgated by May 28, 2010, but the Constituent Assembly postponed the promulgation by a year because of disagreements. On May 25, 2011, the Supreme Court of Nepal ruled that the 2010 extension of the Interim Constitution was not right. Since May 29, 2011 the Constituent Assembly repeatedly extended the Interim Constitution.
On May 28, 2012, Prime Minister Baburam Bhattarai dissolved the Constituent Assembly after it failed to finish the constitution after the latest extension, ending four years of constitution drafting and leaving the country in a legal vacuum. New elections were held on November 19, 2013 to the Second Nepalese Constituent Assembly and political leaders pledged to draft a new constitution within a year. The new assembly expressly committed that the new constitution would be promulgated on January 22, 2015. However due to continued differences on key issues including system of governance, judicial system and federation issues like number, name and areas of the states to be carved, the constitution could not be finalized and promulgated in time.
New Constitution of 2015
A new constitution was set to be adopted in August 2015 but the text has been subject to heavy criticism for failing to protect fundamental rights, as well as protests within the country against the proposed creation of federal states. The draft text includes provisions which have been criticized as violating Nepal’s commitments under international treaties such as clause 3 of Article 31 which reads:
“In exercising the right entrusted by this article, any act which may be contrary to public health, public decency or morality or incitement to breach public peace or act to convert another person from one religion to another or any act or behaviour to undermine or jeopardise the religion of each other is not allowed and such act shall be punishable by law.”
This, in effect, would make it illegal to change religion, evangelize or even explain one’s own religion.
What continues to defy agreement is the form of a federal Nepal— should it be based on identity or on territorial boundaries? The ruling coalition partners—Nepali Congress and Unified Marxist Leninist (UML)—argue that the debate encompasses not only identity and territorial boundaries but also capability. They contend that the territorial formula, which looks to geographical and physical boundaries when carving up the country, is the best way to maintain the economic viability of the federated units. Conversely, Maoists, together with Madhesi and other ethnic-based parties, support an identity formula that takes into account factors such as historical continuity, language, culture, and ethnicity in the delineation of federal units.
Nepal Federal Crisis and Concern of India and China
By necessity, Nepal has become an important sphere of influence for both countries.
Despite a recent rapprochement with Nepal’s Maoists, India remains concerned that a strong Maoist movement in Nepal may exacerbate problems with its own growing Maoist movement.
China is worried about how this debate’s outcome might impact its ability to control and contain anti-China activities from Tibetan political activists residing in Nepal.
India shares deep cultural ties with the Madhesis in the southern Terai region of Nepal and supports their struggle for greater autonomy within a federal framework. It has hosted rare high profile visits for Madhesi leaders— who favor identity-based federalism— sparking media speculation that India is pushing for the identity formula for federalism.
|China’s stance is not any different. Moving from a relatively detached position to high profile engagement in Nepali politics, China—which unlike India and Nepal is a strongly centralized unitary state—has come out strongly against federalism in general and identity-based federalism in particular.|
|But India seems more opposed to indigenous groups and political parties seeking autonomy on the basis of identity based federalism. One possible explanation is India’s own struggle to contain demands from ethnic and indigenous groups for separate states or even outright secession. These are the Nepali-speaking Gorkhas, Nagas and Bodos in the northeast of India. The same paranoia has probably been driving India’s lukewarm attitude towards Nepal’s Maoists.||China’s concerns over how federalism might fuel and encourage further unrest in already troubled Tibet. Specifically, Beijing fears “ethnic” autonomous states in the mid-hills and the north could become a base for Tibetan unrest.|
Ironically, China and India oppose identity based federalism in Nepal while ignoring the fact that their administrative units are, to varying degrees, carved out by a similar formula. Both in federated India as in centralized China, ethnicity, culture, and language, more than geography, have been the basis for defining federal units. Telangana, consisting of units carved out of the ten Northwestern districts of the state of Andhra Pradesh will become India’s 29th state.
China, on its part, has five autonomous regions based on ethnicity to accommodate the demands of significant numbers of ethnic minorities living in these regions. These include Tibet, Xinjiang Ughyur, Guangxi Zhuang, Ningxia Hui, and Inner Mongolia.
Instability in Nepal is likely to have an adverse impact on India’s political, economic and security interests. India was instrumental in the conclusion of the 12-point Agreement, which mainstreamed the Maoists in the political process and led to the elections in 2008. However, in the meanwhile, anti-India sentiments have grown substantially in Nepal.
What should India do ?
India is faced with difficult choices. Any constructive attempt by India to salvage the situation in Nepal through proactive involvement is likely to be interpreted as unnecessary intervention in the internal affairs of Nepal. But passive indifference to developments in Nepal will be misconstrued as shirking of responsibility by observers at home and abroad. In the final analysis, India cannot ignore developments in Nepal and especially the Maoist reality.
In view of the above, India needs to undertake an urgent review of the evolving situation in Nepal, and come up with short, medium and long-term policy options towards Nepal. The following approach may be considered:
- A review of the security situation along the India-Nepal border should be undertaken to verify and ascertain Security arrangement in the border region urgently to prevent any spill over. This is important because media reports suggest migration of people from the Bajhang district to India apprehending conflict.
- Indian business houses should be provided security; India should issue a travel advisory to its citizens not to visit Nepal.
- India may suggest to the Nepal government to maintain utmost restraint and peace during the agitation because the Maoists are not likely to capture power by military means.The Maoists cannot be ignored. India should engage with all parties in Nepal including the Maoists with a view to impressing upon them to resolve the crisis peacefully and in a mature manner.
- India’s good offices should be offered but not imposed.
- The Maoists and other parties should be sensitized about India’s core security concerns.
- India must establish contact at the Track-II (think tanks) and track-III (business and other civil society institutions) levels with Nepalese civil society to better understand the evolving situation and also to find out ways of averting the impending crisis.
The government should reassure the government and the people of Nepal that it has no interest in interfering in Nepal’s internal affairs and that it would continue to provide all help in assisting Nepal economically and otherwise.