COMMENTARY

Rightward Drift in Nepal

C K Lal

The November 2013 elections to a new Constituent Assembly in Nepal gave a fractured mandate but one that made the traditional upper caste and upper class groups dominant again. The principles and goals set by the rst iteration of the Constituent Assembly can perhaps be diluted in the changed circumstances with the marginalisation of the Maoists and other forces favouring federalisation. But it will be impossible to do away with them altogether and institutionalise the old unitary and exclusionary order. An analysis against the background of Nepals political history.

C K Lal (cklal@hotmail.com) is a prominent journalist and commentator based in Kathmandu, Nepal.

early two months after elections for a new Constituent Assembly (CA-II) were conducted in Nepal in November 2013, the freshly constituted house is still in the process of getting full shape. Due to the mix-electoral system enshrined in the Interim Constitution of Nepal 2007, direct elections were held only for 240 out of 601 seats in the assembly. The government is to nominate 26 personalities to ensure that national gures, civil society activists and extremely marginalised groups get adequate representation. The rest 335 in all have been nominated by political parties in ratio of votes received by them on the basis of a list submitted to the Election Commission. In elections for proportional representation (PR), the entire country was considered to be a single constituency where the electorate voted for the party of their choice rather than competing candidates. Parties faced a problem in deciding their nominees because the priority submitted to the Election Commission was not binding and they had to drop more names than they could accommodate in their share of the electoral support. For example, Nepali Congress, the party that bagged the most number of seats in the rst past the post (FPTP) contest (105 out of 240), got to nominate only 91 out of 335 candidates it had listed for proportional representation (PR) based on votes it received. Those left out in the race have understandably created a ruckus in party forums. The monarchist Rastriya Prajatantra Party Nepal (RPPN), Madheshi Janadhikar Forum Loktantrik (MJFL) and United Communist Party of Nepal (Maoist) hereafter UCPN(M) almost broke up due to disagreements over nominees. Leaders have been charged with misusing the PR list to pack the CA with spouses, in-laws, relatives and sundry hangers-on. Once the CA-II has been fully constituted, the formation of a new government will be its rst biggest challenge. The

electorate has given a fractured mandate and the Big Two the Nepali Congress and the Communist Party of Nepal (United Marxist-Leninist) or CPN(UML) will have less than 200 seats each in the new assembly. Being political competitors, it is hard for them to collaborate but the rest of the house is too divided 30 parties and a few independents to enable them forge a coalition without each other. The UCPN(M) will be the third biggest party in the assembly. It is not large enough to help either of the Big Two form a government without each other but has enough numbers to create trouble if they fail to get their act together. The mantra of consensus government is more of a political necessity than a workable alternative. Challenging Task The formulation of a new Constitution is going to be as challenging as ever. Mainly due to fragmentation and personality clashes, the Madheshbadi (Terai-based) parties representing the people of the plains in southern Nepal have lost FPTP seats even though their share of votes remains more or less the same. Newly formed parties of indigenous Janjati groups have largely failed to electorally register their presence in any signicant manner. Issues and agenda raised by them, however, continue to be relevant and enjoy popular support. The Big Two are likely to nd that balancing aspirations of the marginalised groups with the assertions of traditionally dominant section of population is fraught with risks of confrontation. Almost 16 small parties, including a breakaway faction of UCPN(M) that now calls itself CPN-Maoist and is better known as the Dash Maoist, boycotted CA-II elections claiming various political inconsistencies and pre-poll irregularities. Bringing them onboard for the formulation of a Constitution that enjoys widespread support is not going to be easy. The conduct of elections too was not sufciently inclusive. Citizenship certicates were made mandatory for those wishing to vote, but at least a quarter of all eligible voters, according to the recent census, are yet to receive the ofcial
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document that establishes their status as Nepalese citizens. In order to make polls possible on time, electoral rolls were not updated but voters identity cards were issued to those who had registered with the Election Commission a year earlier. In addition to all these constraints, a very large number of voters estimates vary between three and ve million who work in west Asia, Malaysia, and India had no way of casting their votes. One of the reasons behind a very high voter turnout close to 80% has to be the exclusionary conditions prior to elections. Charges of pre-poll scheming and postpoll frauds are impossible to establish. However, parties that believe the conduct of the elections was less than fair can always raise the issue and undermine the legitimacy of CA-II. According to a last minute agreement between major parties, a parliamentary committee is to investigate all allegations of fraud. Its mere formation acknowledges the lack of consensus over the legitimacy of the process. The advantage CA-II has over CA-I, the one that got dissolved a year ago due to arguably extrajudicial directives of the Supreme Court is that the people in general seem to have very low expectations this time. The new assembly is tasked with the responsibility of formulating a new Constitution within a year. Thereafter, it will function as a normal parliament until the next general elections. The fear remains that the almost half-acentury old aspiration of the Nepalese to have a Constitution promulgated by their own representatives may again remain unfullled. Meanwhile, the monarchist party advocating an end to secularism and reverting to a Hindu state the RPPN failed to win a single seat in FPTP but will be the fourth biggest party in CA-II as it managed to garner an impressive number of PR votes, specially from urban areas including the Kathmandu Valley. Historic Baggage For a country that remained virtually closed to the outside world until the early 1950s, Nepal boasts a vibrant record of pursuing political modernism. Upon his return from visiting England and France, Jang Bahadur Kunwar promulgated the rst country code (Muluki Ain) of Nepal
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in 1854. Though said to have been inspired by the Napoleonic code that had impressed Jang for its effectiveness in running affairs of the state, Muluki Ain was in fact a compilation of traditional practices of Sanatan Dharma and injunctions of Hindu sages down the ages. The code indeed proved to be more useful than initially imagined: It helped the Rana family rule the country for over a century even as the Shahs were forced to remain titular heads of the kingdom. The Ranarchy a term used to denote the oligarchy of the Rana clan felt challenged once the British, patrons of the family since Jangs crucial help in crushing the Sepoy Mutiny of 1857, left south Asia in 1947 as Pakistan and India gained independence. The hereditary Premier Padma Shamsher sought and got the help of Jawaharlal Nehru in framing what can be called the rst modern Constitution of Nepal in 1948. Feuds in the family led to the fall of Padma and the Government of Nepal Constitution, 1948 failed to get implemented. After the fall of Ranarchy and the Shah Restoration in 1951, king Tribhuvan promised to hold Constituent Assembly elections and enacted an Interim Constitution. Tribhuvan died without delivering upon the pledge and the conspiratorial nature of politics in Kathmandu made sure that CA elections would never be held as long as the monarchy held sway. However, a constitutional drama carried on even as all state powers continued to emanate from the king, portrayed as an avatar of Vishnu and thus divinely ordained to rule the kingdom. Meanwhile, even the worldly manifestation of the supreme lord had to maintain the faade of modernity and king Mahendra as well as king Birendra promulgated constitutions through royal edicts, though mostly for the convenience of their courtiers. Five amendments to the Interim Constitution of 1951 in almost as many years failed to ensure CA elections. Ultimately the Constitution of Kingdom of Nepal was enacted in 1958 at the behest of the king all over again. Among other specialists, the famous British educationist and constitutional expert Ivor Jennings had helped formulate the supreme law of the newly established democracy.
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The Constitution of 1958 had sought to establish parliamentary practices modelled after the British convention of constitutional monarchy without realising that Nepal lacked the tradition to check the ambitions of a god-king. The parliamentary elections in 1959 gave a twothirds majority to the Nepali Congress. Its leader and Prime Minister B P Koirala enjoyed immense popularity inside and outside the country. The Constitution failed to deter king Mahendra from staging a royal-military coup in the winter of 1960 when he imprisoned almost the entire cabinet including the premier, dissolved parliament, proscribed political parties, and ultimately abrogated the Constitution that he had promulgated himself. In 1962, Mahendra proclaimed a Constitution that sought to institutionalise autocratic rule of the king in the name of the panchayat system modelled after the basic democracy of Ayub Khan in Pakistan and Sukarnos guided democracy experiments in Indonesia. While constitutional monarchy had been the dream of the ousted regime as imagined by Ivor Jennings, Mahendras modernist US advisors sought to mould the king in the role of the chief executive, though hereditary rather than elected, and unchecked by any constitutional agency. The third amendment of the panchayat Constitution after the historic referendum in 1980 amounted to almost a reenactment of the supreme law, as king Birendra discarded indirect polls through the electoral college and embraced the idea of general elections. Political parties continued to be proscribed, which made the entire exercise of elections for the national assembly rather meaningless. The Peoples Movement (Jan Andolan-I) in 1990 led to the restoration of multiparty democracy but the king continued to exercise inuence much beyond what is usually expected of a constitutional monarch in a parliamentary democracy. History repeated itself when Gyanendra declared the new ruler after king Birendra and his entire nuclear family were tragically decimated in the mysterious Narayanhiti Palace massacre on 1 June 2001 staged yet another royal-military coup and assumed all state powers on 1 February 2004. His creeping coup since the
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conspiratorial dissolution of parliament in May 2002 had already disrupted the constitutional order. Apart from other things, it forced the Maoists and votaries of parliamentary democracy to come together. In the end, it was the Peoples Uprising of 2006 (Jan Andolan-II) that ensured the enactment of an Interim Constitution which sought to institutionalise a republic through an elected Constituent Assembly. It had taken nearly six decades from the day Constituent Assembly elections were promised to hold one, but as soon as it convened, the institution of monarchy was consigned to the pages of history. The Constituent Assembly elected in 2008 referred as CA-I after the formation of CA-II too could not deliver a new Constitution despite its term being repeatedly extended. What it did, however, was establish precedence that only elected representatives of the people were empowered to take decisions that affected the future of the country. Challenges Ahead The formation of CA-II is in nal stages. The electorate has done its job. Despite making a mess of the process and giving the PR system a bad name, political parties too have completed their task and submitted the nal list of nominees to the Election Commission. The Election Commission has also forwarded the roll of winners to the ofce of the president of the republic. The row now is who gets to call the rst meeting of the second Constituent Assembly. The Interim Constitution of 2006 had given the task of declaring Nepal a federal democratic republic to the CA-I and hence entrusted the prime minister with the responsibility of calling the rst meeting of the elected assembly as head of state as well as the head of government. The ofce of President Rambaran Yadav thinks that it was an exceptional situation and the country should now revert to the established practice of the head of state calling the inaugural assembly of parliament. The chairman of the interim election council (and the former caretaker prime minister till the CA elections) Khil Raj Regmi considers it to be his privilege to convene the House for which he helped conduct elections. This disagreement
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may look minor, but it is a pointer towards possible conicts between the head of state (however ceremonial) and the head of government (regardless of its nature elected, selected or appointed on an ad hoc basis such as the incumbent one) in a newly democratising country. The formation of the government is fraught with inherent dangers of intra- and inter-party conicts of a hung assembly. The risk of instability is multiplied considering the fact that Nepal is a fragmented society with inter-community relations full of mutual suspicions sometimes bordering on enmity. The dominant group primarily from Bahun and Chhetri castes of the Hindu-fold speaking Nepali language and sticking to a male-dominated social order control all levers of power. They have an overwhelming presence in national life, and the Bahun-Chhetris that together constitute slightly over one-fourth of population occupy three-fourths of all key posts in the bureaucracy, security forces, nancial institutions, courts, media, academia and the non-governmental organisation-sector. With CA-II too rmly under their grip, there is a justiable fear among the marginalised that the progressive agenda may lose steam in the process of framing the Constitution. Initial symptoms are not very encouraging. The PR process was adopted to ensure the participation of the marginalised and the externalised communities so that those social groups that were incapable of competing in the FPTP process due to various reasons would get an opportunity through the ladder of political parties. The very same parties that misused the system most to pack the assembly with their favourites from family, caste, clan, and friendly business communities are now calling the electoral system awed. Akin to giving a dog bad name before shooting it, the risk is now high that the PR process will be downgraded even if not done away with in the new Constitution. That, however, depends upon what kind of Constitution is made within the stipulated period. Leading politicians of the Big Two have repeatedly insisted that CA was not their political priority. One of the rst statements after the declaration of CA results of Madhav Kumar Nepal, an inuential politician of the establishmentarian CPN(UML)

and former prime minister, was that the Constitution of 1990 was an ideal document. There is a valid apprehension that the same statute that sought to institutionalise a unitary government and an exclusionary society will be revived all over again. While there is little risk of a resurrection of the monarchy, the agenda of inclusion, federalism and welfare state may fall by the wayside if the Big Two manage to have their way. Together they command almost two-thirds majority in the new House and with the prodding of their core constituency, which consists mainly of the army, the bureaucracy, and the courts (ABC), they can decide to institutionalise the control of the permanent establishment of Nepal over the polity and society of the country. There is a reasonable concern that elections for local government units have not taken place in the country for over a decade. However, the clamour for its elections at this juncture appear conspiratorial as the form of federalism has yet to be incorporated in the Constitution. The Interim Constitution does call Nepal a federal democratic republic, but that is more a statement of intent rather than reality. The formation of local government units before the promulgation of a new Constitution may undermine the agenda of federalism. The CA-II results have energised parliamentary parties so much that they have totally forgotten the outstanding agenda of the Comprehensive Peace Agreement signed between the then insurgent group, the Maoists, and other prominent political parties of the time. Apart from restructuring of the state, parliamentary parties are yet to reform themselves. Maoist combatants have been managed, but nobody even talks about democratisation rightsizing, civilian control and professionalisation of the Nepal army. Part of the clout associated with the ofce of the president probably emanates from the head of state being the supreme commander-in-chief of the army. With enfeebled civilian control and a weak ministry of defence, the army often manages to have its way just as it did during the monarchical era. The permanent establishment is likely to assert itself through the CA-II, but the pressure of the electorate for progressive
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changes is unlikely to go away. A large number of Madheshis have been elected through the Nepali Congress. Their political career will be in jeopardy if they vacillate from their commitment to federalism based on identity and feasibility, vague terms, but with huge emotive appeal in externalised communities such as Madheshis and Janjatis. Even though reduced in numbers, Madheshbadi parties do not lack the clout to keep the issue of Madheshis social and political dignity alive. The UCPN(M) will have to get its house in order to remain an effective force in Nepalese politics. However, should they fail; the Dash Maoists are waiting in the wings to raise issues of economic justice from the streets with renewed vigour. Similarly, the return to a Hindu order is

likely to be resisted by marginalised communities even if politicians were to fall for the support of the dominant groups. It is not difcult to see that the pendulum of politics has swung slightly rightwards, but it is unstable for the very same reason: the possibility of a movement towards the left-of-the-centre again is alive as long as the machine remains functional. A lot will depend upon geopolitical actors as well. The Chinese have heightened their level of engagement in Nepal as they look for a greater presence and role in south Asia. The US has been a close sky neighbour of land-locked Nepal at least since the days of Vietnam war. India has continued to play a crucial role at decisive moments of history. It can be assumed that they too would be unwilling to let the permanent

establishment get away with a Constitution that merely seeks to legitimise the status quo. The risk with the state of controlled instability is that it may get out of control without warning. That realisation may deter the permanent establishment from hijacking the CA-II on the basis of their brute majority in the new legislature. However, should the need arise, Nepalese people have repeatedly shown that they are ready to hit the streets at the slightest hint of political deceit. Principles and goals set by CA-I can perhaps be diluted in the changed circumstances, but it will be impossible to do away with them altogether and institutionalise the old unitary and exclusionary order, even under the pretext of national unity and integrity.

Maoist Defeat in Nepal

The Price of a Missed Opportunity
Shyam Shrestha

Organisational issues, adjustment with the status quo and tactical errors resulted in the Nepali Maoists gaining an unfavourable image among the electorate in the second Constituent Assembly elections. This resulted in a humiliating defeat. If the Maoists reorient themselves to mass struggle and develop ideological clarity, they can work to retain most of the progressive features of the draft Constitution, nearly agreed upon in the rst CA.

he results of the elections to the second Constituent Assembly (CA) of Nepal 2013 stunned the world and the Nepali Maoists in particular. Nobody had imagined that the party which emerged the largest in the 2008 CA elections with 229 seats will now emerge third in 2013 with only 80 seats. Previously, the United Communist Party of Nepal (Maoist) or UCPN(M) had more legislators than the combined strength of the Nepali Congress (NC) and the Communist Party of NepalUnited Marxist Leninist [CPN(UML)] who had managed 223 seats in total. Now the Maoists strength has shrunk to be more than half of the NC-UML tally of 175 seats. How did the Maoists suffer such a humiliating defeat in such a short period? Was this only due to poll rigging as they have claimed? What are the reasons behind their defeat? Achievements

Shyam Shrestha (shyamne@yahoo.com) is a political commentator and civil society activist based in Kirtipur, Nepal.
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The defeat of the Nepali Maoists in the second CA elections has been even more puzzling because this has happened
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despite some of their major political achievements since the Jan Andolan in 2006. The 2000-year-old feudal monarchy was abolished and Nepal had become a democratic republic, almost by universal consensus in the rst session of the CA in 2008. This process had been completed very peacefully despite the presence of a rebel army and the unresolved status of a long-standing Maoist insurgency. Also, due to the efforts in the CA, the highly centralised and unitary state of Nepal had been in principle transformed into a federal state. The only Hindu kingdom in the world had also been transformed into a secular state. Other achievements were equally astounding. Many features of the Constitution in the making had a decisive socialist character and inclusive nature about them. The right to proportional, social inclusion of women, dalits, ethnic minorities, Madhesi communities, oppressed groups, workers, the poor farmers in state structures and institutions had been ensured as a form of social justice in the Interim Constitution (IC) promulgated in November 2006.1 This special right had been unanimously agreed to be included in the new draft Constitution as well.2 The rights to employment, free secondary school education, free basic health services, food, social security for
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