Will Nepal’s new Constituent Assembly deliver on indigenous peoples’ aspirations for right to self-determination?

22 January 2014

By Prabindra Shakya

On 22 January 2014, as Nepal’s second Constituent Assembly (CA) held its first meeting in Kathmandu, leaders from across political divide have pledged to draw up a new constitution within a year to end the protracted constitution making process of the country.  A previous Assembly elected in 2008 was dissolved and the process suspended in May 2012 after parties failed to agree on key contentious issues, including form of federalism, in new constitution. With the new CA now underway, whether aspirations of Nepal’s indigenous peoples to exercise their right to self-determination (self-governance) in a federal Nepal is highly questionable.

Despite sporadic violence blamed on the political parties boycotting the election, election for the second CA held in November 2013 was hailed to be safe and fair despite. However, with counting of the vote, Unified Communist Party of Nepal, UCPN (Maoist) – the largest party of first CA – alleged of voting fraud when it was shocked by its poor performance in the election to come a poor third. After a failed attempt to halt the vote count, the UCPN (Maoist), along with 17 other parties, demanded formation of a high level commission for independent investigation into “institutional and policy-level rigging” in the election as their condition to join the new Assembly. Besides their claim of election fraud, the other common feature between those parties is that they, along with other smaller parties in new CA, support federalism based on ethnic and regional identity favored by Nepal’s indigenous peoples and minority Madhesis.

Nepali Congress (NC) and Communist Party of Nepal (Unified Marxist-Leninist, UML), which came first and second the election respectively, rejected the demand of the parties outright so as to not raise question on the validity of the election through formation of the commission. The two parties together have won well more than majority seats in the second CA enough to form a government but fall a little short of the two-thirds majority required for promulgation of new constitution. They were second and third largest in the earlier Assembly and share a common position, with other smaller parties, for territorial-based federalism preferred by dominant hill caste groups of Nepal.

Major parties nonetheless made a 4-point agreement on 24 December to form a parliamentary committee to investigate and submit recommendations on the issues raised relating to the election. They also agreed on establishing a committee comprising top leaders of major parties to assist in remaining works of constitution writing and peace process, promulgating federal democratic republican constitution from CA within a year as per aspirations of past agreements and Interim Constitution and taking initiatives to immediately set up Commission to investigate on Disappearances and Truth and Reconciliation Commission aimed at looking into conflict-time human rights abuses.

While UCPN-Maoist and other parties have agreed to join the new Assembly following the agreement, CPN-Maoist, a splinter hardline faction of UCPN-Maoist and lead actor of 33-party alliance that boycotted the election, has called on for dissolution of the new CA and formation of a national government and agreement on core contents of new constitution through an all-party roundtable conference. The alliance has agreed not to be a part of processes under new Assembly concluding that it cannot promulgate a “people’s federal democratic constitution”.

Second Constituent Assembly in Numbers

As per Nepal’s 2011 census, 15.4 out of 26 million Nepalese were of 18 years or above age. Off them, 12.1 million registered to vote under biometric voter registration system down from 17.6 million registered voters in 2008 elections. 122 parties, up from 56 in 2008 elections, contested for 601 seats in the CA through a parallel electoral system—240 elected via first past the post system, 335 via proportional representation and 26 to be nominated by the government. Election Commission of Nepal has reported that 9.4 million votes cast were approved under proportional representation system making total turnout around 78% up from its claim of 70% immediately after voting. The frequent changes in figures of voter turnout have added fuel to the allegations of voting irregularities.

Altogether 30 parties have been elected in the new Assembly. NC became the largest party garnering a total of 196 seats – 105 via first past the post system and 91 via proportional representation. UML won a combined total of 175 seats with 91 under first past the post system and 84 under proportional representation. UCPN-Maoist was limited to 26 seats under first past the post and 54 under proportional representation for a total of 80 seats. In the previous Assembly, the UCPN-Maoist had a total of 229 seats, while NC had 115 and UML had 108 seats. In another shocker of the election, Hindu royalist party Rastriya Prajatantra Party-Nepal (RPP-N) has significantly increased its presence from 4 seats in the first Assembly to 24 seats – all under proportional representation system – in the new Assembly.

Off the 575 seats decided through the elections, the grouping of 18 identity-based federalist parties that claimed election fraud together makes 125 seats, including 80 seats of UCPN (Maoist) alone. Six parties in the grouping have only one seat. Madhesi Janadhikar Forum, Nepal (Democratic), the fifth largest party in new CA with 14 seats and now seen as the strongest Madhesi party, has remained distant from the 18-party group so far. The party was an important player in the alliance of Madhesi parties that had key role in government formation and promulgation of constitution during the life of earlier Assembly.

Indigenous Peoples and Second Constituent Assembly

The new Assembly faces number of serious challenges in order to write a new constitution including formation of a stable government, undertaking functions of a parliament, agreement on power sharing among parties and completing remaining tasks of peace process, among others. However, more serious and of far-reaching consequences are its problems relating to indigenous peoples and other marginalized groups. While inclusion and representation of those groups in the new CA is an immediate problem, a generally acceptable agreement on federal structure is required to guarantee sustainable peace through new constitution.

While Nepal’s former CA was widely applauded for its inclusiveness, the parties have failed to meet even the minimum legal standards for representation of marginalized groups in the new Assembly though the required criteria were generally respected in proportional representation. The nominations under proportional representation were made by the third extended deadline of 30 December amid internal feuds and dissents in many parties – even leading to splits and court cases in few of them. Party leaders have been blamed to use the proportional representation system of election for financial gains and nepotism against its original aim to ensure participation of marginalized groups in constitution writing. This has led calls for scrapping the proportional representation system of election as a whole.

The preliminary analysis of 575 members – directly elected and nominated under proportional representation – shows that the representation of women, indigenous peoples, Madhesis and Dalits has reduced roughly to 33, 31, 26 and 7 percentages from their respective representation of 33%, 37%, 35% and 8% in the previous CA while that of Hindu caste groups is as high as 36% against the minimum requirement of 30%. With weaker and lesser representation and participation of marginalized groups, it is almost certain that their issues will not receive due attention in the constitution writing process under the new Assembly. The political parties need to make efforts towards addressing the unsatisfactory inclusion of marginalized groups while nominating 26 Assembly members by new government.

Further, many identity federalist parties have announced to continue struggle both on the streets and in the Assembly on the issue of federalism in new constitution. They conclude that socio-economic rather than political issues took on the agenda of the election and its results do not weaken their cause for establishing identity-based federalism, which is necessary to build sustainable peace in Nepal. Among those parties is the newly formed Federal Socialist Party, Nepal (FSPN) comprising mostly former UML leaders that has won five seats in the new Assembly.

At the same time, a constitution promulgated without the participation of the 33-party bloc, including many identity-federalist parties led by indigenous leaders, will very likely lead to future tensions. The bloc has already begun its protests with the convening of the new CA. While some argue this even raises question over validity of the new constitution, even Nepal’s giant neighbors – India and China – have indicated the need to involve them in constitution drafting process. Major parties need to make the utmost efforts to bring those parties boycotting the new Assembly in the constitution writing process.

One may argue that, unlike with the old CA where the choice was always compromise or nothing as the three major parties needed each other, there is a radical shift in the political configuration of the new CA that makes it easier to push things through in case of deadlocked negotiations. The NC and the UML may, with the support of a few fringe parties muster the 2/3 majority necessary to pass the Constitution, without the need to compromise on the issue of identity-based federalism with the UCPN (Maoist) and other parties, However, the issue of identity-based federalism still commands a sizeable following and it will be ill-advised to completely ignore that.

With legacies of past conflict unaddressed, renewed violence, and even worse communal violence, might be the greatest challenge for the new Assembly that many fear to be likely as seen in the rise in ethnic tensions in the run up to the deadline of first CA. On the other hand, failure of the political parties to find common grounds to promulgate new constitution even through this Assembly will only strengthen the regressive forces. Statements of some UML and RPP-N leaders, immediately after announcement of election results, about reviving 1990 Constitution with some changes reinforce such assumption.

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