Website on Nepal andHimalayan Studies
| Time in Kathmandu:
Maleth, Saptari district, on March 6, a bloody incident occurred in
which five people were killed by targeted police shooting and numerous
others were injured. This renewed escalation was almost to be expected
in the face of extreme political tensions in the light of the local
elections scheduled for May 2017. The shock is all the deeper as the
police have once again proved their disrespect for human rights.
0n March 30, 2016, the EU and India published a joint statement after a summit meeting in Brussels. Point 17 of this statement was related to the situation in Nepal. The EU and India pledged continued support to Nepal in its reconstruction efforts following the devastating earthquakes in 2015, including capacity building and long term development. But they also agreed on the need for a lasting and inclusive constitutional settlement in Nepal that will address the remaining constitutional issues in a time bound manner, and promote political stability and economic growth.
Nobody referred to the promised continued support offer to Nepal, but Nepalese government vehemently offended the critics in the constitutional procedure. The Ministry of Foreign Affairs verbally claimed: “The EU-India joint statement not only hurts the sentiments of the people of Nepal but also defies the fundamental principle of non-interference in internal affairs of a country. The constitution of Nepal was democratically drafted accommodating aspirations of the people of Nepal”
Two things in this statement are misleading or even wrong. First, many people have been dissatisfied with different parts and regulations of the new constitution and the way it has been written. These sections of society have definitely not been hurt by the EU/India statement but they may even feel happy about this support of their own critics.
Secondly, it is unbelievable that MoFA claims the new constitution has been democratically drafted and accommodates the aspirations of the people. The latter is always a problem as the aspirations have been very diversified in this multi-ethnic, multi-cultural, multi-religious and multi-lingual state with its long history of non-inclusive unitary politics. Those participated in politics and other spheres of public life naturally had the interest to preserve their status and privileges as far as possible while underrepresented sections of society like women, Janajati, Madhesi, Dalits and Muslims anticipated fundamental changes as they had been promised by the traditional political Tagadhari elite time and again after 2006.
This brings us to the lie within the MoFA statement. Many principles that had to be followed while drafting the new constitution had been fixed by the Interim Constitution (IC) of 2007 and several agreements between the political parties among themselves as well as with the Nepali state. In a democratic state, political parties are bound to respect the rule of law. In this case was the interim constitution the basic law, that had to be obeyed by the government, the elected Constituent Assembly (CA) and all other political activists. Under the rule of law, it is the fundamental duty of the Supreme Court to interpret the constitution and subordinate laws and to safeguard the strict obedience of this constitution by the state executive and legislative.
The interim constitution had prescribed that the new constitution had to be drafted by the inclusively elected CA, not by the leaders of the big political parties. The latter are all part of the traditional political elite of male Tagadharis, especially Bahuns. By nature, their interests collided with the interests of the underrepresented groups of society. This is why the IC demanded that the CA had to be elected inclusively with respect to all sections of society and that this inclusive assembly had to discuss and draft the new constitution as the foundation of an inclusive, secular and federal republic of Nepal.
The disregard of constitutional rules already started with the selection of candidates for the CA elections that according to article 63 of the IC had to reflect the composition of society in respect to the FPTP system as well. The parties violated against this article in 2013 even more than in 2008. Latest after the committees of CA I concluded their suggestions for the new constitution at the turn of the year 2009/10, the leaders of the big parties seized the task of discussing and drafting of the constitution from the elected members of the CA.
This disregard of constitutional prescriptions was continued under CA II as well. And this misconduct was committed by all the tree big parties without much difference. Nevertheless, was a new constitution not in sight, when the big earthquakes happened in spring 2015. The top leaders of the three parties forgot their differences of opinion on many issues of the new constitution only after they recognised that their public image declined dramatically because of their total failure after the earthquakes.
So, they openly placed themselves as overlords of the country, disregarded all constitutional rulings and prior agreement and even told the Supreme Court to shut up when it criticised their unconstitutional procedure on the new constitution claiming this was a political affair in which the SC not had to intervene. In a democratic state is the decision of the SC a binding law that has to be respected by executive and legislative, but obviously not so in Nepal.
Along these lines has the new constitution been drafted by a handful of traditional male leaders. The following discussion of this draft by the general public was a farce as the majority of the people did not get the chance to have their say. Not even the representatives of the traditionally excluded sections of society within the CA were allowed to suggest necessary changes of the draft but had to follow the voting order of their party leaders. Besides, the voting was not secret so that everybody could recognise dissenting MPs. Yes, MoFA, this constitution was democratically drafted, indeed!
The consequences of this continued disregard of the rule of law by government and leading politicians are well known. To hold the whole state as hostage and causing much suffering to the people, as was the reaction of the angry Madhesi groups in the Tarai, was not the right way, and also the support and extension of this blockade by India was reprehensible and a violation of international law against the suffering people of Nepal. But primarily responsible for all this have the leading politicians and their non-understanding of democratic rules, their duties and the needs of the country. How else can be explained that they still deny justice to the victims of the conflict, that they do nothing for the reconstruction of the country, that they hardly invest in urgent development projects as planned in the budget and that they still favour committed criminals and corrupt persons among the top leaders of their parties? Secularism is once again under discussion. Federalism only exists on paper and has hardly been discussed after the promulgation of the new constitution. The country is still ruled by the same old circles of male Tagadharis that have failed time and again. Many other things could be mentioned as well. The rule of law looks different. Failed politicians like Nepal's top political leaders have to be criticised for all this from inside and from outside of the country in support of the sentiments of the majority of the people of Nepal.
election to a second CA took place on 19 November 2013, the people were
hopeful that the power struggles of the political party elites had come
to an end. Despite the numerous and grave violations of the interim
constitution that paved the way to CA-II, the people peacefully
participated in the elections in never seen numbers.
One year has passed since elections to the second CA took place and hopes for a new constitution within the near future are shrinking once again. Leading politicians of the two parties in government, Nepali Congress (NC) and CPN-UML may still be claiming that they want to push through a constitution of their mind by two thirds majority vote. But the facts speak a different language. The current proposal of NC and UML has nothing to do with the big promisses made by the political parties in 2006.
The proposal of the government parties means more a continuation of the current single ethnic identity based central state and its transfer upon seven future federal provinces than the introduction of the promised inclusive federal state with equal chances and participation of all sections of society. The government parties reject the introduction of ethnicity based federal units as they are demanded by ethnic organizations and left parties, claiming that the future federal porovinces have to be of multiethnic character.
Yes, Nepal in its entirety is a multiethnic state as it has been first admitted by the constitution of 1990. But this reality exists only on paper. It is not reflected in the country's political, social and economic spheres. The status of the traditionally excluded groups of society (women, Janajatis, Madheshis, Dalits, Muslims) has not changed much after the political Bahun elites made big promisses in 2006. Their representatives are still hardly to be found in state bodies and commissions, leading party circles, diplomatic service, upper administration levels, judiciary, media, security services, education system, health services, etc.
What is national is still defined by culture, thinking and values of the Tagadhari castes. Every demand that does not fit into this system is automatically called "anti-national". It is anti-national, if Janajati and Madheshi activists demand for federal units, whose boundaries fit to historical ethnic mainlands, and for an identification of the provinces with the culture and language of ethnic groups. But the male Bahun party leaders call it "national" if composition and structure of the single ethnic identity based central state are transferred to the future provinces.
The Madheshi activist CK Raut has been arrested because he verbally demanded for an independent Tarai state. Such demand may be against the interim constitution but this constitution also guarantees freedom of opinion, and Raut did not call for a militant revolution. It is also against the interim constitution if RPP-Nepal, RPP and members of the ruling NC demand for a return to monarchy and Hindu state and reject secularism. But these activists don't have to be afraid to be arrested for their verbal demands and threats.
If the top party leaders really want an inclusive federal system then they must first start to listen to the demands and interests of the traditionally excluded groups. They must try to understand their cultures, languages and values and accept them as integral parts of Nepali nationality and history. And they must start to participate them in an adequate and equal way on levels of state and society. Most of all, they must participate them in the writing of the new constitution.
So far, only the male Bahun leaders of the bigger parties discuss and decide about the contents of the new constitution. Why, at all, has a CA been elected? The so-called "leaders" should have written into the interim constitution that the new constitution is written by them and then be presented for voting at an elected parliament.
A new constitution only makes sense if it provides a basis for an inclusive federal state that adequately and equally participates all sections of society independent of race, caste, ethnicity or gender. The parties are wrong if they claim that future provinces cannot be named after the traditional ethnic mainlands. The latter are also an integral part of Nepali history. Such procedure would not open the way to separatism, as claimed by a number of "leaders", but it would show that the ethnic groups have a place the country's history.
Administrative reforms by the Ranas and later by the Panchayat system have intentionally divided traditional ethnic mainlands. The boundaries of the future federal provinces have to reverse this historical injustice. The current proposal by the ruling parties misses this chance and tries to continue the anti-ethnic politics of the past. Besides, it is doubtful that this proposal will be passed by the CA with a necessary two thirds majority. Many Janajatis, Madheshis and Dalits from among the MPs of NC and CPN-UML have already distanced from the proposal of the party leaders.
So, most probable is either a further delay of
the promulgation of the constitution or a defeat of the proposal of the
government parties by voting. One should also not forget that the two
ruling parties together have got less than 50 percent of the votes in
the elections of November 2013, in other words, they do not represent
the majority of the Nepali people.
Elections to a second CA took place on 19
November 2013. The Election Commission (EC) speaks of more or less
peaceful elections. The turnout of voters of
about 77.90% under the PR system and 74.65% under the FPTP system has
been a lot higher than ever before in
Nepali history. 4.96% of the FPTP votes have been invalid as well as
3.2% of the PR votes. In 2008, the figues had been 5.15% and 3.66%
Counting of the FPTP (First Past the Post) votes had been finished first. The UCPN-M that had won 50% of the FPTP seats in the 2008 elections is the big loser in the FPTP election this time. The winners under the FPTP system are the dominating parties of the 1990 political system, i.e. the Nepali Congress (NC) and the CPN-UML. Both parties together have garnered 82.5% of the direct mandates. Only ten parties have been able to win FPTP seats; it had been nine parties in 2008.
9,463,862 valid votes have been counted under the PR system. Altogether 30 parties win seats (25 in 2008); 92 parties win no seat (29 in 2008). The three leading parties of the FPTP system also lead here, but the absolute dominance of NC and CPN-UML has vanished. The NC is the leading party here as well, but compared to 2008 it has got only about 4.46% votes more. The CPN-UML has got 3.39% more than in 2008, while the UCPN-M has lost about 14%. The conservative hardline party RPP-Nepal, that stands for monarchy and Hindu state and rejects a federal setup of the country, has ended on fourth place winning about 23 PR seats. In 2008 it had won only four seats, the only MPs who voted against the abolition of monarchy in May 2008. Also the conservative RPP has slightly improved with probably winning five setas more than in 2008. NC and CPN-UML together have failed a two-thirds majority in CA-II that had looked possible after the FPTP counting. As in 2008, two independent candidates win FPTP seats, one of them being a NC dissident.
were necessary in four constituencies because Sushil Koirala and Sher
Bahadur Deuba (both NC) as well as Madhav Kumar Nepal and Bam Dev
Gautam (both CPN-UML) had been victorious in two constituencies each.
These by-elections in Kathmandu-2, Chitwan-4, Bardiya-1 and Kailali-6
took place on 22 June 2014. This time, Kathmandu-2 where Madhav Kumar
Nepal had been successful in November 2013 went to the NC candidate.
The other three constituencies were won by the same parties as in
November 2013. This means that the NC
has now 197 seats in the CA and the CPN-UML 174 seats.
The final result of the elections to
CA-II looks like this:
Non-inclusiveness of elected FPTP candidates:
Ethnicity of the elected FPTP candidates:
The multiplicity of Madheshi parties - their number has been 34 in these elections - has led to a decline of directly elected representatives from these parties in the second Constituent Assembly (CA-II). Five Madheshi parties have won 12 seats. In 2008, 3 Madheshi parties had won 43 FPTP seats. 13 Janajati parties have participated in 2013 (7 in 2008) and they seem to have failed as in earlier elections, probably also because of missing unity.
and Dalit parties (2008 and 2013 compared):
Definitely, it is far too early to ask for reasons of this election outcome. Probably, the reasons will be manifold. The great number of parties, especially with Madheshi and Janajati background, may have been an advantage for the bigger parties. Disappointment of unfulfilled promises of the winner of the 2008 elections, the UCPN-M, may have been one reason for their losses. The party's split, its denial of justice, its inability to introduce any of the promised and necessary social, economic and political changes, and, finally, its forgotten support of non-included sections of Nepali society may have been other reasons.
The attitude of NC and CPN-UML has not been better in recent years. The leaders of all three bigger parties have been responsible for the failure of the first CA. Maybe we must see the reason for the revival of NC and CPN-UML in the FPTP elections in the consciousness and democratic voting pattern of the Nepali citizens. In 2008, the people voted in great number for the Maoist party that had made big promises, while the other two parties had been responsible for the failure of the 1990 system. But the UCPN-M, besides many other failures, could not implement its ideas and promises. So, the voters returned to the other big parties hoping they have learnt. There is no reason to think so, but the voters, at least, gave them a new chance. This is democracy. The voters understand how it works, but the party leaders don't, neither those from NC and CPN-UML in 2008 nor those from the UCPN-M this time around.
there has been a general trend in the voting behaviour in Nepal ever
since 1991. In the first general elections after about 30 years of
partyless Panchayat system, the NC became the strongest party with an
absolute number of seats in the then 205 member parliament and a
relative majority of votes of almost 40%. After that, there has been a
continuous trend of voting for left, so-called communist parties. In
1994, the CPN-UML won a relative majority of seats and in 1999, it
would have got more votes than the NC for the first time, if the party
had not split prior to the elections. In 2008, the voters had great
hope in the UCPN-M and gave less votes to the CPN-UML that had played a
disappointing role under the 1990 system. The numerous communist
parties together already won an absolute majority of votes in 2008.
This trend seems to have been stopped for the moment.
An evaluation of the election results will take time. It already shows that the distinctness of the FPTP system has faded away after the counting of the PR votes, just as it did in 2008. As expected, the PR vote counting has been dominated by those parties that participated nationwide under the FPTP system.
The reason of the election has been to elect an assembly that shall write a new constitution. For this, it needs a two-thirds majority, and can definitely not be garnered by one or two of the bigger parties. This is what the parties will have to understand if the second CA shall be successful: Close cooperation and willingness for reasonable compromises will be necessary, but this is exactly what the parties have lacked in CA-I.:
of voters: 12.147.865
On 14 March 2013, a new government (election council) has been sworn in by President Ram Baran Yadav under the chairmanship of Chief Justice Khil Raj Regmi. It is said that this government has been made possible by application of Article 158 of the Interim Constitution. Since this article requires the consent of the legislative parliament within one month, the president simply annulled this part of Article 158 for the time being, just as if this only representative president had absolutist powers.
As Regmi refuses to step down as chief justice, the separation of powers has been completely annulled. The executive parliament had already been destroyed by the top leaders of the bigger parties on 27 May 2012. But the Supreme Court (SC) had only decided that the Constituent Assembly (CA) could not be extended as the constitution writing body. It never mentioned that the CA also had to be abolished in its function as legislative parliament.
It would not have been any problem to revive the CA in this legislative function as active and former justices of the SC have confirmed on several occasions. It were the party leaders who were not able to bring the state back on a legitimate path by this most constitutional way.
Nepal has moved another step away from the rule of law. Not only the
top party leaders but also the president and the chief justice
disregard the interim constitution and subordinate laws. Executive,
legislative and judicative powers are joined in one hand, that of the
chairman of the so-called election government. But the male top leaders
of four parties (UCPN-M, NC, CPN-UML and MPRF) have already made clear
that they will have the final control over the ongoing processes. For
this reason, a so-called High Level Political Committee (HLPC) has been
formed with representatives from these major political parties. Its
task shall be to facilitate the election council and resolve political
problems. This may already mean the death of the election plans since
the leaders of the major political parties have proved often enough
that they will never be able to solve any problems.
plan was to hold elections for a new CA on 21 June 2013. Since this was
not possible, the elections shall now take place on 19 November 2013.
The composition of this new CA shall be reduced to 491 members, by Shambhu Ram Simkhada (rep) (from formerly 601).
240 of them will be directly elected, 240 through the proportional
representation system, and 11 shall be nominated by the election
council on the basis of political agreement. The first CA had been by
far too big but the reduction of the proportional system from 60% to
40% of the elected members is a
further step back from greater inclusion. Neither are the parties
inclusive nor have they democratic structures. Their almost exclusively
male Bahun leaders will never nominate the candidates for the direct
system in an inclusive way. This may be suggested by the interim
constitution and by the election law, but it is not binding as in the
case of the proportional system.
But not only the inclusive election right will be reduced, there are a number of other shortcomings that already call the elections for new CA into question. So is the right to vote still not guaranteed to all citizens of Nepal. This most prominently concerns, e.g., the traditionally excluded groups like Madhesi, Janajati, Muslims and Dalits, but also the descendants of Nepali mothers and foreign fathers. There may have been some legal changes in this respect after 2006 but they have never been really implemented, especially not with regard to the traditionally excluded groups.
Further, there have been a number of miususes of the first CA by the political parties, most of all by their so-called top leaders. Elections for a new CA only make sense if these misuses are prevented right from the beginning. One of the most prominent failures of the top party leaders has been the continued misuse of the CA for their political power games. Most negative has been the intervention of the party leaders into the constitution writing tasks of the CA. Not the party leaders but only the elected members of the CA had and will have to discuss and write the constitution. The inclusive election system only makes sense if they are totally free in their opinions and decisions concerning the new constitution and not bound to the will of the party leaders. The top party leaders have destroyed the first CA because they were not able to understand this system.
But the perspective must also include the time after the new constitution has been promulgated. The political parties should use the time to stand up for internal democracy, inclusion and transparency. Besides, they must turn away from their politics of impunity. The half-hearted ordinance for the establishment of a Truth and Reconciliation Commission (TRC), as signed by the president on 14 March 2013, once again gives doubt that the party leaders will change. Nepal needs a completely new leadership within all political parties if the new beginning shall be successful.