Understanding Nepal’s constitutional crisis

Away from the glare of global headlines, Nepal is grappling with a constitutional crisis that could once again propel the tourist mecca, sensitively situated between India and China, into full-fledged conflict.
From 1996 to 2006, Nepal was wracked by a brutal civil war that pitted a Maoist insurgency against the long-ruling monarchy, whose powerful army initially enjoyed the support of the country’s democratic political parties. Peace (brokered by India, with active United Nations support) came only after the Maoists and the democrats agreed in 2005 to establish a Constituent Assembly. The first election was held in 2008, two years after a “people’s movement” forced King Gyanendra to abdicate.

In that election, the Maoists emerged as the largest party, winning 240 of the 601 seats. Then came long-established forces like the Nepali Congress, a social-democratic party modeled on its Indian namesake, and the moderate Communist Party of Nepal (Unified Marxist-Leninist), which, despite its name, is committed to electoral politics within a democratic system. And new mobilized parties of Nepal’s southern plains, representing the Madhesi people, won 80 seats on a platform of greater federalism, ensuring that no single party or grouping could dominate the assembly.

But this balance devolved into paralysis, as the parties consistently failed to overcome their differences to make progress toward a constitution. The deadlock spilled over into the country’s politics, with shifting coalitions forming four successive governments that collapsed within months, each time in a welter of recrimination from the parties that had been excluded.

In 2012, the Supreme Court intervened, decreeing that the Constituent Assembly had outlasted its mandate, and installed an interim unity government led by the chief justice. In 2013, it ordered new elections that changed the political balance, with the Nepali Congress emerging as the largest party and forming a coalition government with the Communists. The Maoists were left with only 80 seats, and the Madhesi forces with 50.

The new government made a public commitment to deliver a new constitution by January 22, 2015. But, though the Congress prime minister, Sushil Koirala, and his Communist deputy, K.P. Oli, have presided over a more stable country, they have been unable to forge consensus on a new constitution.

The parties remain sharply divided on several fundamental questions. Should a new, federal Nepal be divided into states along a north-south axis, as the ruling parties prefer, even though this would give the dominant hill castes of the north a majority everywhere? Or should the new states be delineated according to local ethnic identities, giving minority groups a sense of ownership of at least part of the country?

Should Nepal adopt a parliamentary system, an executive presidency, or some combination of the two? Should it employ the British first-past-the-post electoral system traditionally used on the Indian subcontinent, or should it institute a form of proportional representation?

Perhaps the most important conflict is over how such questions should be settled. The opposition Maoist-Madhesi alliance wants the decision rule to be consensus, whereas the exasperated government proposes requiring a two-thirds majority. Constituent Assembly Chairman Subash Chandra Nembang has attempted to resolve the problem his own way, preparing questionnaires on disputed constitutional issues that, if used, would effectively institute a majority process. The opposition has since boycotted all Constituent Assembly proceedings.

The opposition parties have gained wide support for their position, with Nepal’s largest media organizations, key civil-society leaders, minority activists, and women’s groups all opposing the ruling coalition’s effort to railroad a constitution through the Constituent Assembly. India, too, supports an inclusive approach, having recognized from its own experience of managing diversity the importance of providing minority groups with a sense of security. And the United Nations Security Council has called for an inclusive constitution with the broadest possible support.

Yet Nepal’s ruling coalition remains convinced that it has the numbers to achieve its preferred outcome. The result is a profound cleavage that carries serious risks.

The conflict is already spilling into the streets, with opposition-called strikes paralyzing daily life in large parts of Nepal. And, unless the constitutional crisis is resolved soon, the strikes will be only the beginning. The Maoists are disenchanted with the democratic process. The monarchists are hoping for a return to absolutism. Centralists view federalism as a fig leaf for secession. And ethnic separatists of various hues are indeed seeking autonomy. With all sides keeping their powder dry, failure to reach a constitutional settlement could plunge Nepal back into war.

It probably would not take long to raise the resistance. The Maoists disbanded their 19,000-member army in 2011-2012, integrating 1,500 fighters into the regular army and pensioning off the rest. But many observers believe that the veterans could easily be reactivated and equipped from hidden arms caches.

Open fighting in Nepal would not be good for China or India, both of which fear a flashpoint between them. If, as is believed, China is sympathetic to the Maoists, it could ultimately be dragged, in some capacity, into a war in Nepal.
But it is India – which maintains open borders with Nepal, and received millions of Nepali refugees during the civil war – that probably has the most at stake, as renewed conflict would destabilize India’s hill districts, while leaving its Himalayan borders vulnerable to Chinese encroachment. In this context, India must make a strong diplomatic push to help resolve the conflict, even at the risk of fueling resentment among Nepalese, who are wary of foreign interference.
Soon, the snow in the hills above Kathmandu will begin to melt. But Nepal’s political landscape is showing no sign of a thaw. Paradise has never seemed more fraught. These are testing times in Shangri-La.

This article is published in collaboration with Project Syndicate. Publication does not imply endorsement of views by the World Economic Forum.

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Author: Shashi Tharoor, a former UN under-secretary-general and former Indian Minister of State for Human Resource Development and Minister of State for External Affairs, is currently an MP for the Indian National Congress and Chairman of the Parliamentary Standing Committee on External Affairs.